Free Minds & Free Markets

Sessions Still Is Not Leading a Cannabis Crackdown

The attorney general's memo gives U.S. attorneys the discretion they always had to target state-legal marijuana suppliers.

USDOJUSDOJToday Attorney General Jeff Sessions rescinded a 2013 Justice Department memo that signaled a policy of prosecutorial restraint for state-licensed marijuana businesses. Rather than suggesting to U.S. attorneys how they should decide which marijuana cases to pursue, Sessions is letting them decide for themselves. Although that move reflects Sessions' well-known opposition to marijuana legalization, it is not clear how big an impact it will have on the cannabis industry, because federal prosecutors have always had broad discretion but limited resources in this area.

"Given the Department's well-established general principles," Sessions writes in a one-page memo he sent U.S. attorneys today, "previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately." He is referring mainly to a 2013 memo in which James Cole, then the deputy attorney general, said U.S. attorneys, in deciding whether to target marijuana suppliers who comply with state law, should be guided by "certain enforcement priorities that are particularly important to the federal government." Cole listed eight priorities, including the prevention of interstate smuggling, sales to minors, and drugged driving or other "adverse public health consequences." He added that "nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest."

On paper, the Cole memo left U.S. attorneys free to prosecute state-legal marijuana growers and distributors, as long as they could invoke an important federal interest. That would not have been hard, given the breadth of the goals specified by Cole and his warning that the list was not exhaustive. But in practice, U.S. attorneys since 2013 generally have refrained from targeting marijuana businesses unless they violate state as well as federal law.

Sessions could have tried to change that without rescinding the Cole memo. As a senator and as attorney general, he has said the memo provides sound prosecutorial guidance while suggesting that it has not been applied as aggressively as it should have been. He could easily have defended a broad cannabis crackdown based on the priorities Cole listed. Every marijuana merchant, for example, arguably contributes to drugged driving and underage consumption (through diversion from adult customers if not through lax ID checks), so shutting down the biggest operations through prosecution or forfeiture fits comfortably within the contours of the Cole memo. But Sessions has not attempted anything like that.

On paper, Sessions' memo does not change DOJ policy. By his own account, it merely eliminates gratuitous guidance that was already implicit in the DOJ's "well-established general principles." The question is whether U.S. attorneys will now be more inclined to go after the many highly conspicuous, state-licensed marijuana suppliers who are openly committing federal felonies every day. Although the Justice Department does not have the resources to prosecute all of them, a few raids, or even a few threatening letters, would seriously disrupt the industry.

It's not clear that's what Sessions wants to see, notwithstanding his strong anti-pot prejudices. Most Americans think marijuana should be legal, and an even larger majority, including most Republicans, says the decision should be left to the states. Sessions' boss, who is already irked at him because of the Russia investigation, has repeatedly said states should be free to legalize marijuana for medical or recreational use (although he is less enthusiastic about the latter option). Marijuana is legal for recreational use in eight states, home to one in five Americans. Medical marijuana is legal in 29 states. A cannabis crackdown would anger officials from those states, creating political headaches that neither Sessions nor Donald Trump needs. And since home cultivation is legal in seven of the eight states that allow recreational use, a crackdown would shift the supply from relatively few visible and regulated sources to myriad uncontrollable growers.

The response to Sessions' announcement illustrates the political peril of trying to shut down the cannabis industry. "This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation," Sen. Cory Gardner (R-Colo.) said on Twitter. "With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states." Gardner noted President Trump's promise of marijuana federalism, adding, "I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation."

A "senior DOJ official" who spoke to reporters on the condition that he not be named was cagey about the goal of Sessions' memo. "I can't sit here and say whether it will or will not lead to more marijuana prosecutions," he said. "We believe U.S. attorneys' offices should be opened up to bring all of these cases that are necessary to be brought." Which is also what Cole said.

I would be more inclined to believe that Sessions is bent on wrecking the legal cannabis industry if he challenged state marijuana regulations in federal court. There is a credible argument to be made that licensing marijuana cultivation and distribution, as opposed to merely repealing state penalties for those activities, conflicts with the Controlled Substances Act and is therefore preempted under the Supremacy Clause (leaving aside the shaky constitutional basis for applying the CSA to activities that do not cross state lines). But as Cole noted in 2013, a successful legal challenge to state licensing systems, like a successful effort to shut down cannabusinesses through prosecution and forfeiture, would make marijuana production and sales harder to monitor and control.

Sessions' memo is obviously not good news for the cannabis industry or supporters of legalization. In addition to the 2013 memo, Sessions rescinded a 2009 memo from David Ogden, Cole's predecessor, addressing medical marijuana; a 2011 Cole memo on the same subject; a 2014 Cole memo dealing with banking services for the cannabis industry; and a 2014 memo from another DOJ official extending Cole's guidance to tribal lands. None of those documents provided any guarantees or even clear guidance for people trying to avoid trouble with the federal government. But withdrawing them compounds the uncertainty surrounding businesses that are deemed legitimate by most states yet qualify as criminal enterprises under federal law. Perhaps Sessions' saber rattling will encourage Congress to resolve that conflict in a way that does not depend on fuzzy and fleeting memoranda.

Addendum: Bob Troyer, whom Sessions picked as the interim U.S. attorney in Colorado last November, issued a press release saying today's memo will not affect his prosecutorial choices. "The United States Attorney's Office in Colorado has already been guided by these principles in marijuana prosecutions—focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state," Troyer said. "We will, consistent with the Attorney General's latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado."

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  • Fist of Etiquette||

    "We believe U.S. attorneys' offices should be opened up to bring all of these cases that are necessary to be brought."

    Jesus. I know it's to the ambitious prosecutor's advantage to make what event they will prosecute only known after said event takes place, but what the fuck. How is this vagueness acceptable to anyone outside of law enforcement?

  • BestUsedCarSales||

    Not used to seeing you react authentically. It's scary.

  • BestUsedCarSales||

    I agree though. People don't take it seriously enough how much our livelihoods are at the discretion of the system choosing to sue us or not. Sessions making it explicit here will probably get some rabble from the mainstream, but the underlying truth of this will go unmolested.

  • Jerryskids||

    But in practice, U.S. attorneys since 2013 generally have refrained from targeting marijuana businesses unless they violate state as well as federal law.

    You mean since the Cole memo, the one that just got rescinded?

  • Ken Shultz||

    Sullum is reasonable, measured, and correct, as usual.

    "Sessions' boss, who is already irked at him because of the Russia investigation, has repeatedly said states should be free to legalize marijuana for medical or recreational use (although he is less enthusiastic about the latter option)."

    The only thing stopping Trump from firing Sessions now is that Sessions was one of the few Republicans who was loyal to him during his election campaign. It's important for to a appear that a president who wants to get things done and be reelected is loyal to the people who are loyal to him. If the president doesn't do good for people who are loyal to him, then why should anyone stick their necks out to support his bill on x, y, or z?

    That consideration would evaporate if Sessions were ever to go against one of Trump's campaign promises. Whether you agree with Trump's policy positions, Trump has been pretty good at doing what he said he would, and if I were Jeff Sessions and I planned to go after marijuana retailers in states where it's legal, I wouldn't buy any new homes close to the White House.

    Word around the campfire has it that Trump has seriously considered firing Mueller. Trump wouldn't even hesitate to fire Sessions if Sessions made it look like Trump had reneged on a campaign promise--especially when Trump's reelection may depend on swing states like Colorado and Nevada, where recreational marijuana is now legal.

  • Old Mexican's Speedos||

    The only thing stopping Trump from firing Sessions now is that Sessions was one of the few Republicans who was loyal to him during his election campaign.

    Not that was a surprise to anybody, the (former) senator from the great state of Alabama, Jeff Sessions, went into a dizzying frenzy the moment he heard the words "Wall" and "Mexican rapists" uttered by the man who would become his new boss, in a single breath. It was like he was swept off his Keebler elfish feet!

  • Ken Shultz||

    Of the Republicans who were willing to risk their political futures working with the Trump campaign . . .

    Newt Gingrich, Sarah Palin, Chris Christie, John Bolton, Rudy Giuliani

    . . . Jeff Sessions was the only one with a political future to risk. It wasn't much risk, Sessions could probably have been Alabama Senator for life, but now he's a national name and can probably get whatever is left of the social conservative vote if and when he decides to run for president himself someday.

    He'd make a good vice president for a Rockefeller Republican, type, too. It's an old saw about how rarely a Democrat can with the White House without someone from the South on the ticket, and Sessions makes a good counterweight to that. Put him on the ticket, and the South is probably locked up tight--no matter what happened to Roy Moore.

  • Gaear Grimsrud||

    President Sessions? Jesus fucking Christ.

  • Bubba Jones||

    Mike Pence

  • Tony||

    It's so cute that you think Trump will get reelected.

    As for whether this rosy scenario is correct, at least we'll know for sure once we see whether prosecutions start happening.

  • Thomas O.||

    "It's so cute that you think Trump will get reelected."

    Two words: Bush 2004.

    I'm not taking shit for granted.

  • Elias Fakaname||

    Tony, it's amusing that you are arrogant and smug, given that you are the mental imfe Igor of.......pretty much everyone. You should be grateful you are allowed to continue your ongoing existence, as loathsome as it is.

  • Tony||

    I honestly don't understand the incessant need for you idiots to keep jumping to the defense of this president. Do you really think this is going to turn out well?

  • Dariush||

    I honestly don't understand the incessant need for you to keep bitching about this president. You're like a broken fucking record. You're as nutty as Rosie O'donnell was when she wouldn't stop foaming at the mouth over Bush. Get a grip weirdo.

  • Bubba Jones||

    It's not a defense, it's an observation.

    Trump seems to take his campaign promises more seriously than most Presidents, and therefore it seems unlikely that Sessions will be allowed to piss off Colorado. If you don't trust that analysis, then consider the electoral math.

    Either way, it seems unlikely that Sessions will be allowed to crack down on pot, even if we all agree he would like to.

  • Juice||

  • Old Mexican's Speedos||

    There are slumber parties for the homeless in Chicago during cold?
    There are still homeless in Chicago?
    There's still a Chicago?

  • Gaear Grimsrud||

    Yeah. And the Cubbies still play in their ivy covered burial ground.

  • Texasmotiv||

    Stated reasoning:

    The basement wasn't up to code. In adequate lighting, they risk being exposed to carbon monoxide poisoning, Windows were too small for egress in case of a fire, etc.


  • Old Mexican's Speedos||

    Rather than suggesting to U.S. attorneys how they should decide which marijuana cases to pursue, Sessions is letting them decide for themselves.

    So much for "Lawz Are Meant To Be Enforzed!" I've heard so much from Trumpistas and other authoritarian assholes who post comments on the Facebook pages of The Blaze and even CATO or Reason. Looks like even for the Keebler Elf, some laws are enforced with discretion.

  • The Twitter||

    Hey, look it's the Mexican Pedophile.

  • Old Mexican's Speedos||

    Rapist, drug dealer, criminal, and now pedophile! Will Trumpistas never cease to amaze in their bigotry?

  • Tony||

    They were all pro-pedophile not long ago, weren't they?

  • Old Mexican's Speedos||

    But some, I assume, are good people!

  • BestUsedCarSales||

    Sure. I feel bad for many actual pedophiles.

  • Elias Fakaname||

    Tony, you boy hungry piece of shit. You are the pedophile.

  • Ken Shultz||

    Someone might mention, too, from a purely political consideration standpoint, . . .

    Local law enforcement endorsements still mean a lot to candidates, and one of the underreported stories about cannabis, in my opinion, is the extent to which the growers have been organized by the Teamsters. teamsters-decry-shutdown-la- cannabis-facility-union-ties

    The cannabis retailers and their workers mostly organized with the United Food and Commercial Workers, which may have a large number of voters they can mobilize, but their endorsements probably aren't as important.

    The Teamsters, of course, are also one of the biggest unions that represent law enforcement agencies all over the country. Trump has been especially careful to side with the police both during his campaign and his presidency (see BLM, etc.). Ticking off the Teamsters by going after growers probably isn't a good way to go about getting law enforcement endorsements--whether you're Donald Trump or in congress.

  • Ken Shultz||

    If someone had told me in 2008 that marijuana growers would be represented by law enforcement unions by 2018, I would have thought that was unreasonably optimistic.

    We've come a long way.

  • Old Mexican's Speedos||

    "This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation," Sen. Cory Gardner (R-Colo.) said on Twitter.

    "He lied! He lied to us!"
    "I told you he would never betray his queer idea that only 'bad' people smoke weed."
    "Terminate him! Immediately!"

  • SDN||

    Donald Trump and Jeff Sessions are doing EXACTLY what they should do: tell cowards in the Congress like Gardner that it is their job to pass the laws legalizing marijuana, not hide behind either the courts or the executive.

  • Tony||

    Jeff Sessions doesn't want marijuana legalized. Trump doesn't know where he is half the time.

  • Elias Fakaname||

    Regardless of where Sessions stand on pot, he did say that, and he is correct. And Trump has a hundred times your brainpower. Granted, you are a worthless retard.

  • Jerryskids||

    Title 21 United States Code (USC) Controlled Substances Act


    Part B — Authority to Control; Standards and Schedules

    §811. Authority and criteria for classification of substances

    (a) Rules and regulations of Attorney General; hearing

    The Attorney General shall apply the provisions of this subchapter to the controlled substances listed in the schedules established by section 812 of this title and to any other drug or other substance added to such schedules under this subchapter. Except as provided in subsections (d) and (e) of this section, the Attorney General may by rule—

    (1) add to such a schedule or transfer between such schedules any drug or other substance if he—

    (A) finds that such drug or other substance has a potential for abuse, and

    (B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed; or

    (2) remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.

  • ||

    Cannabis is the scapegoat, and as such, any reasonable expectation that both scientific findings and a shift in public opinion over the plant will be considered by the powers that be, is fanciful thinking.

  • ||

    Nice, and entirely unsurprising, to see Sullum has the most sober and thought out take on this. I was a bit surprised at all of the willingness to say "well, we don't like Executive overreach, except for when it explicitly states it will not spend resources enforcing the laws". I hate these laws. But the Obama end-arounds were the wrong way to go.

  • Tony||

    What this does is add a great deal of uncertainty back into the cannabis industry (certainty doesn't just come from tax cuts!). The Cole memo made it clear enough that as long as states adhered strictly to state laws, the feds would leave them alone. It is highly unlikely that the country's most insistent anti-cannabis warrior is rescinding it solely on the grounds that it's superfluous.

    He already challenged Cole by saying that states weren't complying and threatened to interpret it so that he be tougher on cannabis operations. Rescinding it is a step beyond that. But he's just doing it to reduce the number of unnecessary memos on the books, right?

    Time will tell whether your optimism is justified or whether thousands of people start getting prosecuted who wouldn't under the old regime.

  • ||

    The uncertainty was always there since the Cole memo was neither binding nor absolute. The entire industry continues to deal with the fundamental challenge of "where do I save my money"? The best way to resolve to resolve the uncertainty is to create conflict. I'm glad for this because Congress has had no real incentive to deal the this situation.

  • Imissbuckley||

    You think Congress has incentive to actually do it now? They're having trouble getting even the Rohrabacher–Farr amendment renewed.

    At best you'll see further legislation at the state level barring local law enforcement from aiding the Feds. At the federal level they'll either renew Rohrabacher-Farr or a scaled back version that allows for federal funding to go after Cannabusinesses who are acting "unlawfully" or aren't fully following "regulations" anything more than that I think is a pipe dream.

    I hope I'm wrong, but I doubt we're gonna see much more positive federal reform on cannabis regulation.

  • ||

    They're going to face pressures we haven't seen them face before. I don't know how exactly they'll respond (they rarely do anything constructive anyhow), but given that this is not a strictly partisan issue, there could be more movement then we've seen in the past. I'm not hopeful, but it's better than letting the Executive branch continue to usurp authority.

  • Elias Fakaname||

    With CA now in the recreational pot industry, the amount of money behind it, and the political lobby will grow significantly. The pot industry may well be able to leverage that into so,e legislative action.

  • Old Mexican's Speedos||

    Re: MP,

    The uncertainty was always there since the Cole memo was neither binding nor absolute.

    Yeah, right! The Cole memo was signed and sent by Deputy Attorney General James Cole who was all Federal prosecutors' boss.

    If my boss sends me a memo on policies and procedures, you can bet your sweet ass I'm going to take it as BINDING and ABSOLUTE!

  • ||

    Meet the new boss.

  • BigT||

    "If my boss sends me a memo on policies and procedures, you can bet your sweet ass I'm going to take it as BINDING and ABSOLUTE!"

    Just following orders. Of course you do.

  • Episteme||

    Whoa, that's six pot articles today! You're not going to have any bandwidth left for ass-sex or Mexicans!

  • JuanQPublic||

    Sessions likely has an active grudge against California, especially since his rhetoric against "sanctuary cities". Sessions's memo is hardly coincidental with marijuana legalization in the state this week. He's clearly sending a message, but with questionable follow through.

    If Sessions encourages prosecutions in legal states, it will be problematic for the Trump administration. It will undermine any last remnants of the notion that Republicans support state's rights that are in line with the Constitution. It will also draw focus onto the long shadow that the "war on drugs" has cast, and be symbolic of old, out of touch do-goodies asserting themselves on new, evolving attitudes about marijuana.

    Either way, Jeff Sessions is one of, if not the, worst things about the Trump presidency. He's symbolic of 1980s social conservatism.

  • ||

    Nicely put.

  • Elias Fakaname||

    Sessions needs to devote 100% of his energies towards putting prominent democrats in prison. If he doesn't, then he should go.

  • Rockabilly||

    Fuck you ass clowns, I'll smoke, drink, eat, and grow what I want.

  • JuanQPublic||

    Quick, someone hide behind "protect our youth". That usually works, doesn't it?

  • ||

    Prohibition today, prohibition tomorrow, prohibition for ever.

  • Elias Fakaname||

    Not really. CA went legal this week. The trend is in the opposite direction. There is no outing the genie back in the bottle in this one.

  • BigT||

    Need to re-calibrate your sarc meter.

  • Kazinski||

    This is on Congress. If Cory Gardener is so hot and bothered by this rescinded memo then why doesn't he just introduce legislation that removes all federal penalties for marijuana that doesn't cross state lines? That won't make any states have to legalize it, and they can still seize drugs coming in from Mexico, but it will leave the states alone.


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