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Trump Card: Is A Congressional Legislative Victory On The Horizon For States’ Rights And Pot?

Hopefully the Justice Department will leave state-legal marijuana businesses alone now.

On January 4, 2018, U.S. Attorney General Jeff Sessions single-handedly demolished the federal government’s former cannabis enforcement framework and replaced it with a terse, one-page memo of his own. Sessions’s memo threw the cannabis industry into a bit of a tailspin as nobody could know what this would mean for enforcement of federal marijuana laws in their individual states or in their individual U.S. Districts. With 93 U.S. Attorney offices, it’s still pretty much anyone’s guess as to which U.S. Attorney will do what when it comes to state-legal pot operators. All this comes after Sessions revealed his personal hatred for marijuana and asked Congress to strike the long-standing protections of the Rohrabacher-Blumenauer Amendment. Needless to say, the “Sessions Memo” did not inspire confidence with the industry.

Then in March, Sessions shined a small light on the Department of Justice’s current enforcement priorities:

Federal prosecutors won’t take on small-time marijuana cases, despite the Justice Department’s decision to lift an Obama-era policy that discouraged U.S. authorities from cracking down on the pot trade in states where the drug is legal, Attorney General Jeff Sessions said Saturday. Federal law enforcement lacks the resources to take on “routine cases” and will continue to focus on drug gangs and larger conspiracies, Sessions said.

Sessions added that “federal prosecutors ‘haven’t been working small marijuana cases before, [and] they are not going to be working them now.’”

My opinion on Sessions’s comments was that one still could not tell from those comments whether “small-time” marijuana cases included U.S. Attorneys going after state-law-abiding marijuana businesses. However, Sessions’s cryptic take on his own ominous enforcement memo may not mean anything at all after Friday’s news that President Trump had declared state-legal marijuana will be safe from the DOJ.

Sessions’s attempts to torpedo the Cole Memo angered Republican Senator Cory Gardner from Colorado, who went so far as to threaten to hold up DOJ nominations. According to Gardner, his threat seems to have worked with President Trump:

Late Wednesday, I received a commitment from the President that the Department of Justice’s rescission of the Cole memo will not impact Colorado’s legal marijuana industry . . . Furthermore, President Trump has assured me that he will support a federalism-based legislative solution to fix this states’ rights issue once and for all. Because of these commitments, I have informed the Administration that I will be lifting my remaining holds on Department of Justice nominees.

Obviously, a verbal “deal” struck between a leading Republican senator and the president does nothing to change federal law — cannabis is still a Schedule I controlled substance and any commercial cannabis activity remains a prosecutable crime under the federal Controlled Substances Act. Still, Gardner claims to be working (along with other senators) on a bipartisan, states’ rights-based marijuana bill and maybe that bill (with Trump’s backing) will finally be marijuana’s way out of this federal maze of legal contradictions and political lip service.

Here’s to hoping that Trump’s coming to the table with Gardner will be enough to signal to Sessions (and to the rest of the U.S. Attorneys) that they should lay down their arms and stop fighting states on cannabis.

Hilary Bricken

Hilary Bricken is an attorney at Harris Bricken, PLLC in Los Angeles and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at [email protected].

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