Justice Department ending policy that let legal pot flourish

By Matt Zapotosky, Sari Horwitz and Joel Achenbach / The Washington Post

WASHINGTON — Attorney General Jeff Sessions has rescinded several Obama-era directives that discouraged enforcement of federal marijuana laws in states that had legalized the substance.

In a memo sent to U.S. attorneys Thursday, Sessions noted that federal law prohibits the possession and sale of marijuana, and he undid several previous Obama administration memos that advised against bringing weed prosecutions in states where it was legal to use for recreational or medical purposes. Sessions said prosecutors should use their own discretion — taking into consideration the department’s limited resources, the seriousness of the crime, and the deterrent effect that they could impose — in weighing whether charges were appropriate.

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” Sessions said in a statement. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”

The move, first reported by The Associated Press, potentially paves the way for the federal government to crack down on the burgeoning pot industry — though the precise impact remains to be seen. It also might spark something of a federalist crisis, and it drew some resistance even from members of Sessions’ own party.

Sen. Cory Gardner, R-Colo., said on Twitter the move “directly contradicts what Attorney General Sessions told me prior to his confirmation,” and he threatened to impede the nomination of Justice Department leaders in response.

“With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states,” he wrote. “I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”

In an interview, Gardner said that while he personally opposed marijuana legalization, his state voted otherwise.

“I talked to Jeff Sessions today and we are going to have a conversation next week,” Gardner said. “Let’s just say, there was no reconciliation of differences.”

Marijuana already was illegal under U.S. law, though the advice against bringing such cases in states that approve its use and sale had created an uneasy moratorium between local and federal authorities. Local leaders had long criticized Sessions stance on marijuana, and even President Donald Trump had said on the campaign trail in 2016 he believed the matter should be left “up to the states.”

Eight states and the District of Columbia have laws allowing for personal pot consumption, according to NORML, a group which advocates legalization and tracks pot-related legislation, and many more permit the use of medical marijuana. Washington state Attorney General Bob Ferguson said in a statement he was “disappointed and troubled” by Sessions’ decision. Seattle Mayor Jenny Durkan, a Democrat who helped craft the department’s previous policy when she was a U.S. attorney, said, “Reversing course now is a misguided legal overreach and an attack on Seattle, the state of Washington and a majority of states where the voters have made their voices heard loud and clear.”

In a briefing with reporters, a senior Justice Department official said it was unclear whether the new directive “will or won’t” lead to more prosecutions, because that will be up to individual U.S. attorneys across the country. But the official said the previous guidance “created a safe harbor for the marijuana industry to operate in these states,” and that was inconsistent with federal law.

There are 93 U.S. attorneys across the country, and so far, Trump has nominated 58 people, 46 of whom have been confirmed by the Senate, to fill the slots. On Wednesday, Sessions picked 17 more to serve in interim posts, including in Nevada, California, and Washington, where marijuana is legal. Trump’s permanent picks, though, are likely to face tough questioning on how they will carry out Sessions’ directive, especially in states that have or are contemplating legal marijuana.

The U.S. attorney in Colorado, where marijuana already is legal, issued a statement saying his prosecutors had already been guided by the principles Sessions outlined, and would, “consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”

Cannabis entrepreneurs in the Mountain West and West Coast, though, said they were left with even more uncertatiny after waking up to the news that Sessions was changing the state of play.

“Instantly my phone blew up,” said Krista Whitley, founder and CEO of Las Vegas-based Altitude Products, which sells recreational and medicinal cannabis products.

“Everyone was calling and texting and asking for guidance. I think it certainly makes everyone insecure and adds a layer of confusion to an already complex landscape,” she said. “What we’re looking for in this industry is some level of confidence in where the future lies, and some level of security.”

She said the Sessions decision could scare away some investors who had been eager to participate in what has been dubbed the “green rush” of the booming marijuana industry.

Andrew Freedman, former director of marijuana coordination for the Colorado governor — he was known as the state’s “marijuana czar”- said he wasn’t surprised by the news from Washington because “Sessions always wanted to create chaos in the industry.”

He said that under the Obama-era guidance, there remained tension between federal and state law but there was at least guidance about how states and the federal government could align their priorities. The Sessions decision will lead to more confusion even as states continue to allow legal, regulated marijuana industries, he said.

Freedman said of the Attorney General, “I think he truly believes that marijuana legalization is a threat to how he sees drug policy in the world — which is a 1980s mind-set. That the best way to stop drug use is to criminalize it and put people in jail.”

Sessions’ Justice Department has long taken a hard line stance against marijuana, even effectively blocking the Drug Enforcement Administration from taking action on more than two dozen requests to grow marijuana to use in research.

Sessions has said in the past he did not believe marijuana should be legalized, even suggesting at an appearance last year that medical marijuana had been “hyped, maybe too much.” He and top Justice Department officials had been reviewing the 2013 guidance from then Deputy Attorney James Cole and related memos directing federal prosecutors to effectively back off marijuana enforcement in states that had legalized the substance and had a system in place to regulate it.

His new directive also ostensibly affects medical marijuana, though other prosecution guidelines might dissuade prosecutors from actually bringing a case against someone using the substance for medical purposes.

“Attorney General Sessions’ reported decision is a direct attack on patients,” said Sen. Kirsten Gillibrand, D-N.Y.

In practice, the previous guidance meant U.S. attorneys in jurisdictions that had legalized marijuana at the state level were often reluctant to bring marijuana cases — though Cole’s memo stressed Congress had determined it to be an illegal drug that provided significant revenue to gangs. They might now be more willing to consider such prosecutions — though they will still potentially have to contend with jurors sympathetic to defendants whose conduct would not be illegal under state law.

The Drug Enforcement Administration, too, does not necessarily consider marijuana its highest priority in every jurisdiction, though agents do feel it is problematic in some areas, including in states where it is legal, an official said.The Fraternal Order of Police issued a news release praising the directive as good for public safety and health.

“As our nation celebrated the New Year, many of us caught live coverage of drug use on CNN, a violation of Federal law and a dangerous contribution to normalizing drug abuse,” FOP National President Chuck Canterbury said. “Our members don’t make law or policy — we enforce it. If our citizens want to change the existing law, they should do so. As law enforcement officers, we cannot pick and choose what laws will be enforced.”

Pro-marijuana advocates have long been critical of Sessions’ views on the topic, though his latest directive might also upset those in his own party. Asked by a Colorado TV station in 2016 about using federal authority to shut down sales of recreational marijuana, President Trump said, “I wouldn’t do that, no,” but he was noncommittal on whether he would block his attorney general from doing so.

Sessions’ move could have significant economic impacts, injecting even more uncertainty into investors already apprehensive about what the Justice Department might do when it comes to legal pot.

“If the Trump administration goes through with a crackdown on states that have legalized marijuana, they will be taking billions of dollars away from regulated, state-sanctioned businesses and putting that money back into the hands of drug cartels,” said NORML Political Director Justin Strekal.

Some pro-pot advocates and others, too, sought to cast the move as a continuation of Sessions’ war on drugs. Early in his tenure, he reversed another Obama-era directive and instructed prosecutors to pursue the most serious, readily provable charge — even if that might trigger stiff mandatory minimum penalties for drug crimes.

The Washington Post’s Karen Tumulty contributed to this report.