Anti-marijuana Attorney General Jeff Sessions tendered his resignation on Wednesday, one day after Republicans lost control of the House.
That left cannabis policy observers scrambling to find out where the temporary replacement at the top of the Department of Justice, Sessions’s Chief of Staff Matthew Whitaker, stands on marijuana.
Here’s what Marijuana Moment found in our initial review.
During a 2014 primary debate for the Republican U.S. Senate nomination from Iowa, Whitaker sympathized with patients who benefit from marijuana ingredient cannabidiol (CBD). But, he also voiced concerns about the disconnect between state legalization efforts and the enforcement of federal law under the Obama administration.
During the debate, hosted by Iowa Public Television, he was asked about the state’s recent passage of a CBD-only medical cannabis law.
“First of all, I know a couple of families that are going to be positively impacted by what has happened in the state senate today,” he said. “And I applaud them for helping those families who need that help.”
Whitaker then turned to the Justice Department’s marijuana policy under President Barack Obama’s attorney general, Eric Holder.
“But what we have is we have an attorney general that is telling state attorney generals, ‘if you disagree with a law, you don’t have to enforce it.’ And I am gravely concerned that we are now going to go back and forth between who’s in the White House and what their drug enforcement policy is, and you’ll see under what we have now—where you have Colorado and other states legalizing it really with no federal interference—and then when we come back, we may have a different regulatory scheme.”
Well, then, what should Congress do to resolve those differences?
“I think Congress should regulate things that harm people, and that is the hard drugs and the like that dramatically hurt citizens, cause violent crime in our communities, and those should be regulated,” he said.
“But not marijuana?” the debate moderator asked.
“For me, I saw the impact of marijuana on our border,” he said, presumably referring to his time as a U.S. attorney. “And if you go to any of the counties in Texas where there’s an illegal importation of marijuana, there’s a tremendous amount of violence.”
Marijuana reform advocates have generally applauded the announcement of Sessions’s resignation, as the now former attorney general has a long history of demeaning cannabis consumers, disregarding research about the benefits of medical marijuana and upholding federal prohibition.
“Attorney General Jefferson Sessions was a national disgrace, NORML hopes he finds the time during his retirement to seek treatment for his affliction of 1950’s reefer madness,” NORML executive director Erik Altieri said in a press release.
Rep. Earl Blumenauer (D-OR) called the move a “major step forward for marijuana reform,” also noting that Rep. Pete Sessions (R-TX), who has obstructed votes on marijuana-related legislation as chair of the House Rules Committee, was defeated in Tuesday’s midterm elections. The two are not related despite sharing the same last name and a disdain for cannabis.
Losing two Sessions, Jeff and Pete, in 24 hours is a major step forward for marijuana reform. https://t.co/ykR8eT8Rid
However, there’s also an argument to be made that Sessions’s departure from the office could ultimately pose threats to the legal cannabis movement. Sessions and President Donald Trump have had a contentious relationship almost from the start of the administration, and the attorney general’s reluctance to crack down on legal cannabis states could theoretically be attributed, in part, to that dynamic. The next attorney general could enjoy some more flexibility when it comes to enforcing federal marijuana laws.
For his part, Sen. Cory Gardner (R-CO) said on Tuesday that he’s looking forward to “continuing to work with the President to fulfill his campaign position to leave the regulation of marijuana to the states.”
With respect to new leadership at DOJ, I will remain committed to defending the rule of law and the rights and decisions of Coloradans. I look forward to continuing to work with the President to fulfill his campaign position to leave the regulation of marijuana to the states.
Trump has already said he’s actively pursuing a permanent replacement for Sessions, so it’s unclear what, if anything, Whitaker could achieve during his temporary stint as acting attorney general, or how long his tenure will last.
As patients and recreational cannabis consumers celebrate the wave of legalization sweeping the nation, federal authorities continue to apply whatever pressure is available to them to prosecute both individuals and marijuana-related businesses.
In May 2014, an amendment to an appropriations bill, Section 538, was introduced to Congress by Dana Rohrabacher, a Republican from California and Sam Farr, a Democrat from the same state. Prohibitionist opponents of the amendment and the Department of Justice (DOJ) at the time said that it would, “…in effect, limit or possibly eliminate the Department’s ability to enforce federal law in recreational marijuana cases….”
However, in an internal Department of Justice memo obtained by Marijuana.com, the Department stated that “This suggestion, which was intended to discourage passage of the rider, does not reflect our current thinking.” Andy Harris, a Republican from Maryland who is staunchly opposed to cannabis legalization of any type, said, “The amendment as written would tie the DEA’s hands beyond medical marijuana.”
The amendment, which passed, was intended to barr the DOJ from using federal funds to “prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Unfortunately, based on the Department’s reversal in its interpretation of the language of the amendment, it claims that it prevents interfering only with states, not individuals or businesses.
According to the Justice Department, the law prevents it “from impeding the ability of States to carry out their medical marijuana laws, not from taking actions against particular individuals or entities, even if they are acting compliant with State law.”
However, this clearly isn’t the spirit of the law. In April, Rohrabacher and Farr sent a letter to then-Attorney General Eric Holder to clarify their position and the intent of the law. “As the authors of the provision in question, we write to inform you that this interpretation of our amendment is emphatically wrong.”
The letter stated:
“The implementation of state law is carried out by individuals and businesses as the state authorizes them to do so. For the DOJ to argue otherwise is a tortuous twisting of the text…and common sense and the use of federal funds to prevent these individuals and businesses from acting in accordance with state law is clearly in violation of Rohrabacher-Farr.”
Despite a request from Rohrabacher and Farr to the inspector general of the DOJ for an investigation, the Department has stood firm in its “new” interpretation of the law. The memo obtained by Marijuana.com states that the only effect of the Rohrabacher-Farr law is to stop the DOJ from pursuing cases in which “the State or state officials are a party.” This means that, unless a state is officially involved in such a case, the DOJ believes that it is simply doing its job by enforcing federal-level prohibition.
The defiance of the DOJ, clearly illustrated by its strong pre-passage talking points regarding how the bill would “limit or possibly eliminate” its ability to enforce federal law concerning marijuana prohibition, smacks of convenient fear-mongering designed simply to thwart its passage. Now that the bill is law, the DOJ is engaging in the unsportsmanlike (and arguably illegal) behavior of re-interpreting its language.
According to Rohrabacher and Farr, the Department is defying the spirit of the law each time it seeks to prosecute an individual or business in a state where medical or recreational cannabis is legal. Will new Attorney General Loretta Lynch step in and discipline the Department? Or will she maintain the status quo, either by officially supporting the defiance of the DOJ or simply looking the other way?
Last week, two lawmakers in Washington, D.C. expressed their frustration over the fact that the Department of Justice (DOJ) has continued to prosecute patients in states where medical cannabis is legal — in open defiance of a congressional amendment passed last December that protects patients and dispensaries. California Representatives Dana Rohrabacher (a Republican) and Sam Farr (a Democrat), co-sponsors of the amendment that prohibits federal interference in states where medical cannabis is legal, sent a letter to the DOJ demanding that prosecutions of patients and providers cease.
Wrote the representatives in a letter to Attorney General Eric Holder:
“We respectfully insist that you bring your Department back into compliance with federal law by ceasing marijuana prosecutions and forfeiture actions against those acting in accordance with state medical marijuana laws.”
The Justice Department, however, in a very narrow interpretation of the law, has issued statements reflecting its belief that the amendment does not apply to cases against individuals or organizations (such as dispensaries that are currently being prosecuted in California). Patrick Rodenbush, a spokesperson for the DOJ, said the law only stops the department from “impeding the ability of states to carry out their medical marijuana laws.”
Congressmen Rohrabacher and Farr, in their letter to Holder, said that the DOJ’s interpretation of the amendment was “emphatically wrong.” They went on to state that the purpose of the amendment was to prevent the DOJ from wasting law enforcement resources on prosecutions of “medical marijuana patients and providers, including businesses that operate legally under state law.”
These “enforcement resources” are outlined in a 2013 report by Americans for Safe Access. The report illustrated that the Obama administration has spent more than $80 million per year — equal to about $200,000 per day — to prosecute medical marijuana users, cultivators, and dispensaries. The crackdown has been justified by the fact that cannabis is, alongside heroin and meth, a Schedule I drug, giving it an official status of “no currently accepted medical use.”
Separate legislation has been introduced to Congress that would reclassify cannabis to Schedule II, preventing the crackdown by the DOJ and DEA in states with legal medical marijuana. It would also allow much needed research into the plant’s medical efficacy. While passage of this rescheduling is uncertain, it would go beyond the existing federal amendment and offer broader, less ambiguous protections for individuals and retail outlets.
The only thing that seems certain currently is the DOJ’s defiance of the existing amendment and its continued prosecution of patients and dispensaries in places like the San Francisco Bay area and the state of Washington. However, given the strict interpretation of the amendment and defiant stance of the DOJ, patients and providers in all 23 states where medical cannabis is legal are subject to fear, federal scrutiny, and prosecution.
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