Sessions has ordered a review of DOJ marijuana policy
A recent poll showed most wanted states to be left to their own devices
Attorney General Jeff Sessions does not like marijuana.
He has called regular marijuana use “only slightly less awful” than heroin dependence. He once made a joking comment about not minding the KKK until he found out they smoked marijuana. And as a senator, he was one of the most avowed opponents of legalization.
A few months with Sessions as the nation’s top cop have left pot supporters wondering how far he’ll go to roll back Justice Department policy allowing states to set their own pot rules.
Where things stand
As deputy attorney general Rod Rosenstein put it this week, there is a “conflict” between federal and state views on marijuana. A drug offender in the eyes of the federal government is just a recreational pot-smoker in the eyes of a hefty handful of US states and DC, where Sessions goes to work each day.
Nevertheless, he has yet to crack the whip on states and localities like DC that allow marijuana use in opposition to federal law.
“We’re not able to go into a state and pick up the work that the police and sheriffs have been doing for decades,” Sessions said at a March press conference.
In an April memo, Sessions called for a Justice Department task force to review policies in a number of areas, including marijuana. He requested recommendations “no later than July 27.”
Among those tasked with reviewing Obama-era DOJ policies is Steven Cook, a prosecutor who has taken a hard line on sentencing reform and liberalizing drug rules.
In May, Sessions produced one of the first results of the task force review when he rescinded sentencing guidelines put in place under Attorney General Eric Holder’s tenure. The Holder guidance asked for prosecutors to grant leeway to drug offenders, while Sessions is directing them to seek the most serious offense they can.
What Sessions decides to do on pot will come down to the department’s review of another Holder-era rule: the Cole memo.
The 2013 memo from then-deputy attorney general James Cole stated that while marijuana was still an illegal drug and the Justice Department would continue enforcement of federal law, it would defer to state governments that had developed strict regulatory regimes.
In 2014, the Justice Department issued another memo saying banks could provide services to licensed marijuana businesses.
Asked about department policy in that March press conference, Sessions said, “The Cole Memorandum set up some policies under President Obama’s Department of Justice about how cases should be selected in those states and what would be appropriate for federal prosecution, much of which I think is valid.”
Congress and the DOJ
The Justice Department has yet to indicate what way the task force will go.
On Tuesday, Alaska Sen. Lisa Murkowski – a Republican from a recreational pot state – asked Rosenstein: “Where are we headed with marijuana?”
Rosenstein gave a lengthy answer, saying the “conflict” between federal and state laws remained.
“Jim Cole tried to deal with it in that memorandum,” Rosenstein said. “And at the moment, that memorandum is still in effect. I can’t – maybe there will be changes to it in the future, but we’re still operating under that policy.”
“Confusing,” Murkowski responded once Rosenstein was through.
But even if Sessions decides the federal government should change course on state marijuana rules, Congress could set up roadblocks.
Rep. Dana Rohrabacher, a Republican from California, introduced an amendment to the federal budget that passed in 2014, prohibiting the DOJ from using any money to block medical marijuana on the state level.
After Congress passed a budget leaving Rohrabacher’s amendment intact, Trump signed the appropriations bill into law, but also tacked on a signing statement that could indicate his willingness to part with Congress on the issue.
In 2015, Reps. Tom McClintock, a California Republican, and Jared Polis, a Colorado Democrat, introduced an amendment going even beyond Rohrabacher’s. If passed, it would prohibit the Department of Justice from using funds to fight any marijuana activity – medical or recreational – legal under a state law.
Polis said in March he’d be pressing forward with the amendment, and on Thursday, a bipartisan group of legislators reintroduced a bill aimed at blocking the Justice Department from touching legalized medical marijuana.
As the budget debate heats up again in the fall ahead of the new fiscal year and a potential government shutdown in October, debates over these measures have begun to resurface.
Sessions sent a letter to congressional leadership dated May 1, reaffirming the Justice Department’s opposition to the Rohrabacher-Farr amendment. The letter first surfaced on MassRoots.com. House Minority Leader Nancy Pelosi confirmed the letter’s existence to CNN.
“I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime,” Sessions said in the letter.
The line from some: Sessions has bigger priorities than pot.
Shortly after President Donald Trump fired FBI Director James Comey, Sen. Jeff Merkley said Sessions “has other things on his mind” besides changing the DOJ’s pot policy, but also said he didn’t know what to expect for sure from the task force review.
Advocates across the board expressed a range of cautious optimism as well.
Marijuana Policy Project spokesperson Mason Tvert told CNN that his organization, one of the heavyweights on the pro-pot side, felt “very hopeful” that Sessions wouldn’t interfere as states and localities continued to liberalize their pot laws but also underscored the uncertainty this early into the new administration.
“We don’t know for sure,” Tvert said. “Nobody knows.”
Still, Tvert pointed out that while Sessions was opposed to marijuana use, so did attorneys general under former President Barack Obama.
“A lot of the comments that Jeff Sessions made during the confirmation process are the same as his predecessors,” Tvert.
Erik Altieri, president of the long-standing pot lobby NORML, said he was waiting to see the results of Sessions’ requested task force review.
“We’re definitely not out of the woods yet,” Altieri said.
Colorado Gov. John Hickenlooper, who opposed marijuana legalization but has said he’s committed to upholding the will of the voters, said on MSNBC in late April that he had reached out to Sessions about leaving his state to its own devices on marijuana legalization.
“At one point he said, ‘Well, you haven’t seen us cracking down, have you?’” Hickenlooper said. “He’s very clear: He is anti-drugs in all forms. And he’s not going to in any way encourage anyone to start a marijuana business, to think that it’s a great idea to do or even safe to do so. That being said, he didn’t give me any reason to think that he is going to come down and suddenly try to put everyone out of business.”
Most everyone who opposed a potential crackdown pointed that Sessions would be working against public opinion.
In February, a group of four members of Congress launched the Congressional Cannabis Caucus, and a Quinnipiac University poll released on April 20 showed 60% of people supported legalization and 73% said they did not support marijuana enforcement in states with legalized medical or recreational pot.
For his part, Sessions broached the subject during an April speech in Arizona, seemingly surprised at how much attention the issue had gotten.
“They nominated me for attorney general,” Sessions said. “You would’ve thought the biggest issue in America was when I said, ‘I don’t think that America’s going to be a better place if they sell marijuana at every corner grocery store.’”