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A raid conducted by Denver police on a marijuana business circa 2013.
A raid conducted by Denver police on a marijuana business circa 2013.
Photo by William Breathes

Rescinding Cole Memo One of Eleven Ways Trump May Try to Kill Legal Pot

U.S. Attorney General Jeff Sessions's announcement about rescinding the Cole memo, an Obama-era Department of Justice document that provided some legal protections for businesses operating in states that allow and regulate cannabis sales, has shaken the marijuana industry in Colorado and beyond. But Justin Strekal, political director for the National Organization for the Reform of Marijuana Laws (NORML), isn't surprised by this action. As we noted last July, Strekal believes an op-ed from the ultra-conservative Heritage Foundation enumerating eleven ways the administration of President Donald Trump can kill legal cannabis is being used by Sessions and company as a crackdown guideline, and junking Cole is fifth on the list.

"So far, Attorney General Sessions has taken every action he can of those eleven points short of actually launching enforcement actions," Strekal says. "That includes, but isn't limited to, his vocal reaffirmation of support for prohibition, reasserting America's drug-policy position on the world stage, and upping the profile of drug-enforcement personnel."

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The eleven suggestions by the Heritage Foundation's Charles "Cully" Stimson, which were originally published in February 2017, appear in their entirety below. But the fifth item reads: "Rescind and replace the August 2013 memorandum from then-Deputy Attorney General James M. Cole — i.e. the 'Cole Memo.' The Department of Justice could do this by reiterating that marijuana cultivation, distribution, and sale are against federal law and that while states may decriminalize possession of marijuana, they may not issue licenses to sell it or commercialize it. Reiterate that the federal government is not locking up people for smoking marijuana, and that state employees are not going to be arrested, but that the Department of Justice fully expects states to not permit commercialized marijuana production and sale."

Sessions's move has caused many observers to fear DOJ intervention in states such as Colorado and California, which launched legal sales on January 1. But Strekal doesn't think a full-scale crackdown is days away.

U.S. Attorney General Jeff Sessions at the podium.
U.S. Attorney General Jeff Sessions at the podium.
YouTube file photo

"I think the term 'immediate action' can be too easily misconstrued in this day of hyper-awareness about minute-by-minute developments," he allows. "In my personal view, the likelihood of shutdowns has not increased or decreased as a result of Cole being rescinded. But the attorney general has always been very clear about his opinion of marijuana, which is that he doesn't like it and doesn't think good people use it — and he is our nation's top law enforcement officer."

Unlike Andrew Lelling, the U.S. Attorney in Massachusetts, who's declined to guarantee that he wouldn't prosecute marijuana businesses that open when the state's retail system debuts in July, Bob Troyer, U.S. Attorney for the District of Colorado, appeared to downplay the DOJ shift in his own post-rescission statement. He wrote that Sessions "directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions. The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state. We will, 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."

In a subsequent clarification provided to Westword, Troyer added the following explanation in regard to how he will determine what constitutes the greatest marijuana safety threats:

"Here is the question we ask every time we consider allocating our finite resources to prosecute any of the vast number of federal crimes we can prosecute, from violent crime to immigration crime to opioid crime: will this prosecution make Colorado safer? Under the Attorney General’s new memo, we have more freedom and flexibility to make decisions that make Colorado safer by prosecuting individuals and organizations for marijuana crimes that significantly threaten our community safety. Also, rather than give U.S. Attorneys any specific direction, the memo returns trust and local control to federal prosecutors, and clarifies that they know how to deploy their resources to make their Districts safer."

As for Strekal, he considers the Justice Department's new approach to be "a disappointment," especially since it could be used in tandem with other attacks on procedures instituted under Eric Holder, President Obama's AG, including a policy reversal on civil-asset forfeiture and a push for maximum sentences whenever possible. And he isn't reassured by the possibility that the proclamation was conceived as a distraction from negative news about Sessions's boss, including questions about President Trump's mental stability outlined in Michael Wolff's new book, Fire and Fury.

Justin Strekal, political director for NORML.
Justin Strekal, political director for NORML.
NORML Twitter

"Those who seek to oppress have always used the divide-and-conquer strategy when it comes to populations they seek to exert power over," he allows. "But whether this decision was timed to coincide with Fire and Fury or some other issue really doesn't matter. Hopefully, the American public at large has the ability to maintain outrage on multiple fronts."

Strekal sees evidence of this aptitude in "an incredible influx of support for our chapters. Last year, we had 24 statewide lobbying days, the most in our history. We're looking to top that in 2018, and we're already seeing successes. Just hours after the Attorney General rescinded Cole, the Vermont statehouse voted to legalize marijuana for responsible adult use. We're also looking to claim victories for legalization in New Jersey and for decriminalization in Virginia, and ballot measures may be run in Michigan, Oklahoma and Missouri. A number of other states are pushing forward on reform, too, on medical marijuana and possibly outright legalization during the 2018 legislative session."

To Strekal, victories in these states and beyond would send a message that voters don't want to turn back the clock on marijuana. "Never before have we seen support for legal marijuana be this high among the American populace," he allows. "We have outright majorities of Democrats, Republicans and independents for marijuana legalization, and 94 percent of Americans support medical marijuana — and you couldn't get 94 percent of the public to agree that the American flag was designed correctly. At a time when we have so many issues facing our society, and with politicians desperate to build support for their platforms, and their personalities, acting against marijuana would be the most asinine decision they could make."

In the meantime, Strekal stresses, "There's nothing the Department of Justice can do that would re-criminalize marijuana in the states where it has been either legalized or decriminalized — and in the absence of people being able to purchase marijuana in the store, there would be a black market. That presents a predicament to the Trump administration. Does this administration want to put $7 billion back into the hands or drug cartels? Or would they like to see that $7 billion be taxable income from businesses and 150,000 jobs for individuals working in the legal marijuana supply chain? And that's not even to mention the projected increase of those revenues that would be diverted away from drug cartels."

Here's an excerpt from the aforementioned Heritage Foundation op-ed.

The Heritage Foundation's Charles "Cully" Stimson.
The Heritage Foundation's Charles "Cully" Stimson.
Heritage Foundation file photo

How Trump’s DOJ Can Start Enforcing Federal Marijuana Law
By Cully Stimson

1. Reaffirm support for the law. Issue a statement affirming the incoming administration’s commitment to the Controlled Substances Act with the goal of reducing, not expanding, the use of marijuana in the nation.

2. Coordinate with lower-level officials. Have the new attorney general prioritize reaching out to governors and key law enforcement officials in states that have legalized marijuana to work with them on enforcement of federal marijuana laws.

3. Reassert America’s drug position on the world stage. The White House should make clear that the United States continues to support the three international drug conventions, and that it intends to change its domestic policy to reflect that support.

4. Up the profile of key drug enforcement personnel. Restore to Cabinet-level status the position of the director of the Office of National Drug Control Policy, and adequately fund the office so that it can be effective.

5. Rescind and replace the August 2013 memorandum from then-Deputy Attorney General James M. Cole — i.e. the "Cole Memo." The Department of Justice could do this by reiterating that marijuana cultivation, distribution, and sale are against federal law and that while states may decriminalize possession of marijuana, they may not issue licenses to sell it or commercialize it. Reiterate that the federal government is not locking up people for smoking marijuana, and that state employees are not going to be arrested, but that the Department of Justice fully expects states to not permit commercialized marijuana production and sale.

6. Select marijuana businesses to prosecute. Find a handful of cases in which large, well-funded marijuana businesses are in violation of both state and federal marijuana laws and prosecute both their management/operators and financiers. A real threat of prosecution will raise the cost of capital in the industry significantly, and seriously impede any operations above the cottage-level. Moreover, selection of unsympathetic defendants in violation of both state and federal law will (1) minimize political pushback, (2) avoid conflict with congressional appropriations provisions, and (3) clearly demonstrate the failure of the Cole Memo.

7. Rescind the Financial Crimes Enforcement Network’s guidance for banks and oppose efforts to expand banking services to the marijuana industry. One of the principal brakes on the expansion of the marijuana industry is its lack of access to banking. Once pot businesses have regular, unimpeded access to institutional capital, their ability to scale up will expand significantly—and the financial sector will begin to lobby in favor of expanded sales of the drug.

8. Support state attorneys general in nonlegalized states. Nonlegalized states have suffered significantly from illegal diversion of marijuana from legalized states, and from the apparent uptick in sophisticated cartel activity there. Support could include entering as an amicus to support the merits of the suit Nebraska and Oklahoma filed against Colorado.

9. Prosecute those dealing in marijuana — which is illegal under federal law — using the Racketeer Influenced and Corrupt Organizations Act (RICO). Those who engage in a pattern of racketeering activity through a corporation or other enterprise are liable for three times the economic harm they cause. RICO gives federal courts the power to order racketeering enterprises and their co-conspirators to cease their unlawful operations.

10. Prosecute those who provide financing for marijuana operations. Federal anti-money laundering statutes make it illegal to engage in financial transactions designed to promote illegal activities, including drug trafficking. Start with one major marijuana financier and successfully prosecute it.

11. Empower the FDA to take action to regulate marijuana in order to protect patients and the public. Marijuana legalization poses a public health problem, and the FDA should be tasked with investigating marijuana for chemical contamination and pesticides. Marijuana should also be subject to the standards of the rigorous criteria of the FDA approval process, which has been carefully constructed to protect consumer and patient health and safety.

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