In retaliation, Gardner vowed to block all future DOJ nominees. The senator's first holds were put in place on January 8, just days after Sessions released his own memo allowing federal prosecutors in states that have legalized pot to decide how to enforce federal cannabis laws. However, in an announcement today, February 15, Gardner says that he has lifted part of the DOJ blockade as an "act of good faith" after talks with Department of Justice leadership...but not all of the 22 nominees he's held up are now clear to move forward.
“Since the Department of Justice rescinded the Cole memo, I have been working with the Department’s leadership, including Deputy Assistant Attorney General Rod Rosenstein and the Acting United States Attorney for Colorado, on a path forward that respects states’ rights and clarifies the DOJ’s priorities regarding marijuana enforcement,” Gardner said in a statement. “Because we have had positive conversations, I have decided to lift my holds on the Assistant Attorney General for National Security, United States Attorneys, and United States Marshals as an act of good faith. My holds on all other DOJ nominees will remain in place as discussions continue."
That leaves six of Gardner's 22 holds still in effect, according to the list of DOJ executive nominations.
Gardner and Sessions met later in January to discuss the AG's position, but both sides came away with little to say and even less to show. However, pressure continued to build from the DOJ for Gardner to end his blockade, with some of his fellow senators even calling on him to loosen his stance.
Sal Pace, a Gardner supporter, former state lawmaker and current Pueblo County Commissioner, says he thought the nominee holds could muddle the senator's cause. "Nobody who supports federal cannabis reform, including myself, wants cannabis to be blamed for holding up appointees related to national security. Such a strategy could backfire," Pace says.
According to an announcement from Gardner's office, the senator has had positive conversations with Rosenstein and Robert Troyer, the U.S. Attorney for the District of Colorado, regarding the DOJ's priorities on federal cannabis enforcement.
There have been no reports of state-compliant cannabis businesses being raided by federal law enforcement since Sessions rescinded the Cole memo, and Troyer had said his office will continue conducting business as usual. But that's not enough for Gardner and several other Colorado politicians, including representatives Jared Polis and Diana DeGette. Polis has pushed amendments to federal spending bills that would prohibit the DOJ from using funds to go after medical and recreational cannabis in states where it's legal, while DeGette called for a meeting with Troyer in early January to talk about plans for cannabis enforcement.
“While I have decided to lift my holds on these specific nominations, I will continue to lead a bipartisan group of colleagues to find a legislative solution," Gardner concluded in his statement. "I remain optimistic that we will come to an agreement with the Department of Justice soon."
The DOJ could not be immediately reached for comment.
The Obama-era Cole memo was written in 2009 to clear up confusion regarding how or even if federal government agencies could discipline state-legalized cannabis businesses and users; it advised federal prosecutors to refrain from using DOJ funds to prosecute them.
Another attempt to protect legal cannabis — albeit one a little more zealous than Gardner's — is under way in federal district court, where five plaintiffs have sued Sessions, the DOJ and the Drug Enforcement Administration over pot's Schedule I status with the federal government.