U.S Attorney General Jeff Sessions sent shockwaves through the cannabis industry early Thursday morning, rescinding the state-level protections that have allowed legal marijuana to spread since Colorado and Washington passed recreational-use laws in 2013.
Politico reports that Sessions has rescinded the Cole memo, a 2013 Justice Department guidance that deprioritized the enforcement of federal restrictions on cannabis in states that chose to legalize it. The move may be entirely symbolic, though, and may have zero effect on any state’s marijuana industry.
"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," says Sessions’ letter repealing the Cole memo. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."
The letter was part of a Justice Department memo on marijuana enforcement that said, “Attorney General Jeff Sessions directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities. This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.”
Reading between the lines, we see a lot of “rule of law” language, and that any enforcement decisions would be at the behest of U.S. attorneys. The Cole memo itself was non-binding, so there may be no real change on the horizon.
Donald Trump favored marijuana legalization as a candidate on the campaign trail. “In terms of marijuana and legalization, I think that should be a state issue, state by state,” Trump said at an October 2015 rally.
An identified Justice Department official underscored that it’s still unclear if this represented any real form of crackdown. “I can’t sit here and say whether it will or will not lead to more marijuana prosecutions,” the senior official told Politico. “We believe U.S. attorneys’ offices should be opened up to bring all of these cases that are necessary to be brought.”
Sessions ruling comes at a critical time for the industry, with California having just implemented recreational use and billions invested statewide. But the Justice Department official says the move is unrelated.
“This is something that has been under consideration at the department for a long time,” the official told reporters. “I know of nothing that ties it directly to that.”
But elected officials in legal states are furious.
"This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation. With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states," Colorado Sen. Cory Gardner (D) tweeted. "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."
Even Republicans in recreational states like Alaska have joined the chorus criticizing Sessions.
“Over the past year I repeatedly discouraged Attorney General Sessions from taking this action and asked that he work with the states and Congress if he feels changes are necessary," Alaska Sen. Lisa Murkowski (R) said in a statement. "Today's announcement is disruptive to state regulatory regimes and regrettable."
But Sessions’ move is timed with the possible repeal of a budget rider called the Rohrabacher-Blumenauer amendment that prevents the use of Justice Department funds to prosecute cannabis businesses in legal states. That amendment remains on life support until the new federal budget deadline of Jan. 19.
That measure’s co-author Rep. Earl Bluemenauer (D-Ore.) says the Cole memo repeal pointed out that "the majority of Americans—including a majority of Republican voters... want the federal government to stay out of the way.” Bluemenauer added that he thinks the decision "is perhaps one of the stupidest decisions the Attorney General has made."
But there may be no policy implications whatsoever from the repeal of the Cole memo, and Sessions’ announcement may be meant as a scare tactic or a distraction.
As one cannabis business owner told High Times’ Chris Roberts, "I think it's a distraction tactic from Bannon's book and whatever other shady s*** they're trying to sneak through.”
UPDATE: CNN reports that two leading members of the conservative House Freedom Caucus have called upon Attorney General Jeff Sessions to resign. In an op-ed published Thursday morning, Mark Meadows, Freedom Caucus chair, and Jim Jordan, a member who sits on the oversight and judiciary committees in the US House of Representatives, wrote, "It's time for Jeff Sessions to go."