Cory Gardner (R-CO) reached a compromise with President Trump last week agreeing to end his hold on Justice Department nominees, securing a promise that the Trump administration would not start federal marijuana prosecutions against those behaving legally under state law.
Dubbed by one publication as the “pot blockade,” Gardner has used his power in the Senate to block eleven Department of Justice nominees ever since Attorney General Sessions withdrew the Cole Memorandum. On January 4th of this year, Sessions sent a memorandum to all United States Attorneys, withdrawing Cole and encouraging his prosecutors to bring marijuana cases.
The Cole Memorandum is a 2013 directive to U.S. Attorneys designed to restrict federal prosecution of those behaving legally under state law. It was created as a way to solve the impasse between federal law, under which all marijuana possession, sale, cultivation, etc., is illegal, and state laws, which have been rapidly changing to allow these activities in many instances of state-legal marijuana. Eight states and the District of Columbia now allow adults to possess and use marijuana recreationally, while in at least eleven others, medical marijuana is legal. Federal law and regulation, however, completely prohibits doctors from prescribing marijuana.
New War On Pot?
If the Cole Memorandum was a good idea in 2013, it is a necessity in 2018, with a third or better of Americans now in states voting to eliminate criminal prohibitions on pot. That is unless you’re comfortable with extreme outcomes in furtherance of marijuana prohibition. As I wrote in January:
To be clear, enforcing federal law would include raiding all the thousands of dispensaries now operating legally under state law. This means arresting all their customers, employees, suppliers, owners, bankers, landlords, stockholders, etc., etc. as they are all, in fact, acting in open defiance of federal law which as General Sessions reminds us Congress has prohibited. The federal criminal law provides for life sentences for cultivation and distribution and yes, even the death penalty for extremely large sales and production.
Sessions, it seems, is comfortable with them. He has said “good people don’t smoke marijuana,” and that “[o]ur nation needs to say clearly once again that using drugs will destroy your life.” His revocation of the Cole Memo replaced that directive with one that called “marijuana a dangerous drug, and marijuana activity a dangerous crime.”
Cory Gardner met with Jeff Sessions a week after he revoked the Cole Memorandum. Since that meeting Gardner placed holds on eleven nominees, preventing their confirmation. The Denver Post reported twenty additional nominees were likely to be held up shortly as well. The pressure worked, and the administration has relented. Gardner posted this in an announcement on Friday:
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. My colleagues and I are continuing to work diligently on a bipartisan legislative solution that can pass Congress and head to the President’s desk to deliver on his campaign position.
Sword of Damocles
Having the fates of many thousands of Americans and many billions of dollars depending on Sessions’ whims, or that of his successors is untenable. Trump campaigned as a moderate on marijuana, claiming it should be an issue states decide for themselves. Given the odds at which he and Sessions seem to view the issue, one wonders if they discussed the memo’s withdrawal prior to Sessions doing so. The Los Angeles Times is reporting that Trump did not inform Sessions of his negotiations with Gardner.
While Trump is a teetotaler, unlike Sessions, he is not a scold. Trump is also a populist, and decriminalization is a popular issue with 67% of Americans supporting it, including a majority of Republicans, according to an October Gallup poll. Canada is likely to start countrywide legalization this summer, and in jurisdiction after jurisdiction, Americans and their legislatures are removing criminal penalties and moving towards legalization.
Opposition to Sessions’ treatment of the issue has been bi-partisan, and perhaps then there is room for a legislative solution. Let’s hope so – we desperately need it.