Is DOJ's Silence on Marijuana Legalization an Encouraging Sign?

This week Washington Gov. Jay Inslee discussed marijuana legalization in his state with Attorney General Eric Holder for 45 minutes and afterward said he heard nothing to dissuade him from implementing Initiative 502. Inslee called the meeting in Washington, D.C., "very satisfying" and "a confidence builder," although it sounds like Holder did not say much, let alone commit to anything:

"We went in thinking we should continue with rule-making, and nothing I heard should dissuade us," Inslee said.

At the same time, he stressed that Holder said nothing about the federal government's intentions and whether it would crack down on Washington state or look the other way.

Inslee said he did not press Holder for a clearer signal, or position, because he considered their talk a preliminary meeting, with more discussions to follow.

Noting that the state is moving ahead with rule-making, Ferguson said he emphasized that the state would like answers soon. "We made it very clear that while we're moving forward, some deadlines are coming up soon. I think Attorney General Holder understood that we'd need guidance in months to come," Ferguson said.

Inslee said several times the state would provide Holder with details about how it would prevent its legal marijuana from leaking into other states.

"We spent some time talking about how the initiative would work, how the regulatory process would work. He listened with great interest, and I appreciated that," Inslee said….

In case the federal government decides to oppose the law, Ferguson has a team of lawyers in his office preparing to make the best legal case for upholding I-502.

"I said we want to avoid a legal fight," Ferguson recounted during a news conference after the meeting with Holder. "We want to find a pathway forward. But if it comes to it, the Washington Attorney General's Office will be prepared for a legal fight."

The U.S. attorney's offices in Colorado and Washington all decline to say how they will treat newly legal marijuana growers and sellers. Jeff Dorschner, spokesman for John Walsh, the U.S. attorney for Colorado, says he can only point me to his boss's December 10 statement that marijuana remains illegal under the Controlled Substances Act, that the Justice Department still has a responsibility to enforce that law, and that neither the executive branch nor the states "can nullify a statute passed by Congress." Joe Harrington, spokesman for Michael Ormsby, the U.S. attorney for the Eastern District of Washington, says, "I don't want to comment on what might happen a year from now." Emily Langlie, spokeswoman for Jenny Durkan, the U.S. attorney for the Western District of Washington, says her office is waiting for guidance from the Justice Department, which is developing a "coordinated response." I have been trying for weeks to get an answer from Justice Department spokeswoman Nanda Chitre about when we can expect to hear the Obama administration's plan for responding to marijuana legalization, but she is not returning my calls.

In the meantime, both Colorado and Washington are beginning the process of writing the rules for growing, processing and selling marijuana. On Tuesday the Washington State Liquor Control Board held the first of six hearings at which it will take public comments about what its marijuana regulations should look like. On the same day, the Amendment 64 Implementation Task Force, charged by Gov. John Hickenlooper with advising state legislators and regulators on how to proceed, officially adopted its first recommendation, one of many that will appear in a report due by the end of February. The first recommendation addresses banks' leeriness of marijuana money, which stems from the fear that accepting it might expose them to civil and criminal liability under federal law, a problem that could severely impede the emergence of a recreational marijuana industry. Tellingly, the task force's recommendation involves sending a letter to Washington, D.C.:

In order to maximize transparency, accountability, and public safety, the Amendment 64 Task Force recommends that as soon as practicable, the Governor, the Attorney General and groups representing state-based financial institutions, the state marijuana industry, and state business interests jointly request that the President of the United States, the U.S. Department of Treasury and any other appropriate federal agency modify federal regulations, including Bank Secrecy Act regulations, to ensure that businesses engaged in the lawful cultivation and retail distribution of marijuana pursuant to [Amendment 64] are able to access banking services, and provide guidance on their intention to enforce federal regulatory and criminal laws against depository or lending institutions doing business in Colorado with marijuana businesses that are in strict compliance with Colorado law. The request should include a deadline of March 31, 2013, to ensure time for the Colorado General Assembly to consider any other options during the 2013 session in the event we receive no response.

So far "no response" seems to be the Obama administration's official policy regarding the crumbling of the marijuana prohibition regime. I suppose this keenness to avoid the issue could be seen as an encouraging sign, which seems to be Inslee's view. Call it the Opacity of Hope.