Trump White House Claims Executive Privilege Over Agency Memos on Marijuana Legalization

Want to know what federal agencies are telling the White House about marijuana legalization? Too bad. It's secret.


Yuri Gripas/Reuters/Newscom

The White House Office of National Drug Control Policy (ONDCP) has claimed executive privilege over federal factsheets that reportedly describe the alleged dangers of marijuana legalization. The agency has thus made the documents secret from the public.

In response to a Freedom of Information Act appeal from Reason, the ONDCP asserted that 33 pages of memos sent to its Marijuana Policy Coordination Committee were shielded from release by the presidential communications privilege, under which records prepared or reviewed by the president's close advisers are confidential.

Coincidentally, the denial comes just in time for Sunshine Week, an annual event where news organizations and open-government groups celebrate transparency and commiserate over the lack of it.

The process of trying to get these memos illustrates how hard it has become to get records from the federal government in a prompt or useful manner.

Last summer BuzzFeed reported that the ONDCP had a secretive committee on marijuana policy, and that it had ordered more than a dozen federal agencies to submit 2-page factsheets on the dangers of marijuana legalization. The office

solely sought negative information on the drug. The memos instructed 14 agencies and the Drug Enforcement Administration to submit "data demonstrating the most significant negative trends" on the drug and identify issues with state legalization ballot measures, in part to prepare a report for President Donald Trump, who has previously supported states' rights on marijuana.

The committee complained in one memo that the narrative around marijuana is unfairly biased in favor of the drug and said it wanted to turn the tide on increasing marijuana use.

The public would surely be interested to know what Trump-era federal agencies think about marijuana legalization, right? Or at least I'm interested. So last September I sent Freedom of Information Act (FOIA) requests to 11 federal agencies, including the ONDCP, for those memos.

It's been roughly seven months since then. Of the 11 agencies I contacted, eight have yet to send me a final response. Two of those never acknowledged my request at all.

Of the three agencies that did respond, the Drug Enforcement Administration said it couldn't find any records responsive to my request, which means it either failed to send a memo per the White House's instructions or its search was not very thorough.

The U.S. Department of Education refused to release a single page under the "deliberative process" exemption, which shields pre-decisional communications between bureaucrats from disclosure. I'm currently waiting for a response to my FOIA appeal of that decision.

The ONDCP released 33 pages to me, but every one was redacted in full. I filed another FOIA appeal, and today I received a response to it. The ONDCP stated that the memos in question were subject to executive privilege, a broad power that allows the White House to keep information secret for the ostensible purpose of ensuring that aides can give the president candid advice.

"All of the standards for invoking the presidential communications privilege are present in this case," the office claimed. "ONDCP's records review shows written evidence that the records at issue were solicited and received by a senior White House advisor and that the information was gathered for the purpose of formulating advice to and briefing the President. Accordingly, the line-by-line redactions typically required when invoking the deliberative process privilege are not required when the presidential communications privilege applies. Therefore, the records were properly withheld in full, and your appeal is denied."

Happy Sunshine Week!