And so it begins. Alabama Senator Jeff Sessions, Trump's nominee for the country's next attorney general, took center stage on January 10 at his confirmation hearing. Marijuana supporters had been quick to voice their concern over Sessions's nomination because of his stance on marijuana, as well as his positions on other social issues.
Sessions's most recent statements on marijuana were made during a Senate hearing last April, when he said that "good people don't smoke marijuana," that "we need grownups in Washington to say marijuana is not the kind of thing that ought to be legalized" and that "it is in fact a very real danger."
Will Sessions be the grownup he says we need? Today's hearing didn't provide many clues.
It started at 9:30 a.m. Eastern Standard Time, and marijuana was not specifically mentioned until just after 3 p.m., when Vermont Senator Patrick Leahy asked Sessions about medicinal use.
"Regarding states' rights, states have also voted on the issue of marijuana," Leahy said. "Your own state of Alabama permits a derivative of marijuana known as CBD oil, which is legal in Alabama but illegal under federal law. If you are confirmed as the nation's chief law enforcement official, you know we have very limited federal resources. Would you use our federal resources to investigate and prosecute sick people who are using marijuana in accordance with their state laws?"
Sessions gave a wish-washy response, noting that "it's a problem of resources for the federal government" and adding that he'll use his judgment in how to handle those cases in a "fair and just way."
Leahy pressed on, reminding Sessions that in the past he has called for the death penalty for second-time marijuana offenders, to which Sessions responded, "That doesn't sound like something I'd normally say."
"Would you say that's not your view today?" Leahy asked.
"That is not my view today," Sessions responded.
Senator Mike Lee followed up with a question about the separation of powers and states' rights, specifically asking Sessions about the legality of marijuana use.
Sessions again avoided directly addressing the issue. "Congress has made the possession of marijuana in every state an illegal act," he said. "If that is not desired any longer, Congress should pass a law to change it. It's not the attorney general's job to decide which laws to enforce. We should enforce the laws as effectively as we are able."
"I think the answer was really confusing and, frankly, the question was confusing," says Bob Hoban, managing partner at the Hoban Law Group, the country's premier cannabusiness law firm.
And he wasn't impressed by Leahy's line of questioning, either, since he'd said that CBD is illegal — when it's a gray area.
Hoban wasn't the only industry leader questioning Sessions's indirect responses.
"It's a good sign that Senator Sessions seemed open to keeping the Obama guidelines, if maybe with a little stricter enforcement of their restrictions," says Tom Angell, chairman of the Marijuana Majority. "The truth is, his answer was skillfully evasive, and I hope other senators continue to press for more clarity on how he would approach the growing number of states enacting new marijuana laws. The most important thing to remember is that the president-elect clearly pledged to respect state marijuana policies, and we expect his administration to follow through. To renege on that promise would create enormous political problems for the new president and distract from the rest of his agenda."
While Sessions was giving vague answers, Trump's incoming press secretary was on FoxNews clarifying that Sessions will fall in line with the Trump administration's agenda.
"When you come into a Trump administration, it's the Trump agenda," said Sean Spicer, who'd been the chief strategist and communications director for the GOP before being named by Trump to take over press duties at the White House.
During the hearing, Utah Senator Mike Lee asked about "guidance documents." Although he didn't mention marijuana specifically, it has a guidance document: the Cole memo, published by the Department of Justice in 2013.
Named after Deputy Attorney General James M. Cole, the document provides guidance for federal prosecutors working in states where medical or recreational cannabis is legal. The memo ushered in a hands-off approach by stating that federal agencies will not interfere in"jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana." This stance follows the Tenth Amendment, which established states' rights after the American Revolution.
Because of the Cole memo, Obama's administration did not interfere when Colorado legalized recreational marijuana while he was in office, and stood back when other states followed suit.
The memo isn't law or policy; it's just a document interpreting the law. While the Obama administration did not interfere when states began legalizing retail sales of marijuana, industry leaders fear that Trump's administration may not be so open to the idea.
"A guidance document can be beneficial," Sessions responded, adding that "a guidance document cannot amend the law."
Since guidance documents are not law, for the attorney general's office to be bound to support legal recreational marijuana, Congress would have to pass a law making it so.
"The current federal policy, as outlined by the Cole memo, has respected carefully designed state regulatory programs while maintaining the Justice Department's commitment to pursuing criminals and prosecuting bad actors. In return, the responsible cannabis industry has helped countless critically ill patients, contributed billions of dollars to the economy and to tax coffers, taken marijuana out of the criminal market and put it behind a regulated counter, and dealt a significant blow to international cartels and traffickers," said Aaron Smith, executive director of the National Cannabis Industry Association.
Senate hearings do not conclude for another two days, but with the support he has from other Republicans, as well as many in the law enforcement community, Sessions's confirmation looks likely.
Leafly deputy editor Bruce Barcott and editor Ben Adlin are watching the entire confirmation process and posting updates. Anyone looking for a delightfully written play-by-play can find them here.
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