Attorney General Jeff Sessions withdrew legal guidance Thursday that protected recreational marijuana, allowing U.S. attorneys to crack down as they see fit on state-legal businesses.
There are 10 U.S. attorney offices spread across the six states that opened recreational markets under the 2013 Cole Memo. But what crackdown materializes is anyone's guess.
“I read the memo and frankly think it's a bluff and a way for DOJ to change the subject from California becoming legal,” said Adam Eidinger, a pro-legalization activist who led joint-rolling activists to Sessions’ Senate office last year.
Killing the Cole Memo was a big win for legalization opponents, but it's not itself a crackdown. The Justice Department did not file lawsuits to knock down regulatory frameworks in Alaska, California, Colorado, Nevada, Oregon, or Washington.
“Sessions did not announce a strategy where he was going to sue Colorado tomorrow. It was about federal cases, and it takes a while to put cases together,” said Kevin Sabet, the nation's most prominent anti-legalization activist and leader of the group Smart Approaches to Marijuana.
“I would be shocked if we see any action very soon, but I still think it sends a message to the industry and industry players and financiers and investors who may not want a case to be built around them," said Sabet, who met behind doors with Sessions and other anti-legalization advocates in December.
Instead of a frontal attack, Sessions directed “all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities.” Federal law makes almost all pot possession illegal, but prosecutors took a largely hands-off approach since California voted to legalize medical use in 1996.
Many businesses, local officials, and pro-legalization activists took the news in stride, feeling confident with bipartisan pushback and recent polling showing legalization support above 60 percent.
Some U.S. attorneys — including those in Alaska, Colorado, Oregon, and western Washington — released statements that appeared to suggest continuation of the status quo under the Cole Memo, which outlined enforcement triggers including underage sales and interstate smuggling.
Adam Braverman, interim U.S. Attorney for California’s southern district, seemed to praise Sessions, saying his action “returns trust and local control to federal prosecutors," but also said his office would "continue to utilize long-established prosecutorial priorities to carry out our mission to combat violent crime, disrupt and dismantle transnational criminal organizations, and stem the rising tide of the drug crisis."
Sabet believes people are making too much of the statements.
“No U.S. attorney is going to be giving their strategy in public,” he said. “Those statements basically said nothing.”
Sabet doesn’t have a prediction on a specific U.S. attorney who would be inclined to crack down on businesses, but said “I know that generally U.S. attorneys in Republican and Democrat administrations are people who want to enforce and uphold the law.”
Only one of the 10 U.S. attorneys in a position to prosecute state-legal recreational pot firms has been confirmed by the Senate to a four-year term, Bryan Schroder of Alaska. The rest are acting or interim U.S. attorneys.
One of California’s four unconfirmed U.S. attorneys is stepping down over the weekend in northern California, and Sessions may have a hand in choosing a replacement in that district, which includes the famed Humboldt County cannabis growing area and major Bay Area markets.
Enforcement is “going to vary from district to district,” said Timothy Purdon, a former U.S. attorney for North Dakota who helped prepare 2014 guidance allowing American Indian tribes to regulate recreational sales.
“These sorts of prosecutorial discretion decisions can seem like they are made in a black box. It heightens the importance of [businesses] having a relationship with the local [U.S. attorney] office,” Purdon said.
Purdon said U.S. attorneys have power to stymie Drug Enforcement Administration efforts to raid businesses that violate federal law, but said refusing assistance on matters such as search warrants has a political cost.
“The average DEA special agent in charge is not a fan of legalized cannabis in Colorado or in Washington,” he said. "If you have a DEA special agent in charge bringing you a search warrant every year and you are saying no and no and no, then you are creating a record.”
A DEA spokeswoman said the anti-drug agency is referring questions about the change in marijuana policy to the Justice Department, its parent agency.
Purdon believes it’s unlikely the Justice Department would strike at the foundations of the pot industry, citing estimates of up to 230,000 full- and part-time jobs associated with state-legal businesses.
“I think this is designed to sow uncertainty in the industry ... and to slow the growth,” he said. “The Department of Justice tomorrow could file a lawsuit against Colorado seeking an injunction ... they could bring that litigation in district after district across the country.”
Purdon said U.S. attorneys who aren’t confirmed by the Senate “are going to be a lot more conscious of what's going on in Washington.” He said it’s possible a U.S. attorney will feel strongly and take an aggressive approach against businesses.
Sabet, the anti-legalization activist who’s consulted with Sessions, said he believes the large number of U.S. attorneys serving in a temporary capacity may reduce the likelihood of near-term action, as senators could hold up their nominations or vote them down.
"It only takes one senator to throw a wrench into things," he said.
