DOJ’s pot memo creates big decision for US attorneys

Attorney General Jeff Sessions is leaving it up to federal prosecutors to decide whether to crack down on marijuana in states where medical and recreational use is legal.

In rescinding the Obama-era policy that relaxed enforcement of federal marijuana laws on Thursday, Sessions opened the door for federal prosecutors to begin pursuing cases.

But the memo didn’t explicitly call for action, experts noted.

“It could have been a harder-line memo,” said Don Stern, a former U.S. attorney for Massachusetts.

“The attorney general didn’t order them to enforce federal law under all circumstances, which suggests he understands the decision will depend a lot upon the state regime of regulation, the resources available and other priorities.” 

Sessions this week pulled back an Obama-era directive known as the Cole memo, which told U.S. attorneys to give lower prioritization to prosecuting marijuana-related cases. 

The Obama memo helped create an environment for the legalization movement to flourish.

Eight states — Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington — and the District of Columbia have legalized the recreational use of the drug.

Meanwhile, public opinion has shifted in favor of marijuana legalization, with a Pew Research Poll this week finding that 61 percent of people support allowing sales of the drug. 

Given those trends, some are skeptical that the attorney general’s move will have much of an impact.

Stern said he doesn’t see the memo making much of a difference in the states that have legalized marijuana, though he said it could make it harder for people to start or invest in new marijuana-related businesses.

“I think he is, by design and result, dampening down and chilling what was a growing industry, but I don’t think we’re going to see an increase in federal prosecution cases as a result of his directive,” he said.

Mary McCord, senior litigator and visiting professor at Georgetown Law’s Institute for Constitutional Advocacy and Protection, noted that marijuana has always been illegal under federal law. 

Even under the Obama-era guidance that Sessions rescinded, she said, U.S. attorneys would have prosecuted a marijuana shop if it was selling to minors or serving as a cover for a criminal organization.

McCord, who served from 2012 to 2014 as the criminal division chief at the U.S. Attorney’s Office in D.C. overseeing criminal prosecutions in federal district court, said Sessions’s move was mostly symbolic.

“We’ve heard the public statements. He personally views marijuana as a gateway drug, as a dangerous drug, but the memo is three paragraphs,” she said.

“It doesn’t say ‘you must make this a priority, you must prosecute marijuana-related crimes.’ ”

The Department of Justice said the new guidance on marijuana is restoring the rule of law.  

“The Justice Department is returning to the rule of law and returning local control to federal prosecutors so they can evaluate the public safety threats to their districts and determine how to pursue marijuana-related prosecutions,” a Justice Department official said in a statement to The Hill.

“In making those decisions, U.S. Attorneys should also follow long-established principles.”

Those long-established principles direct federal prosecutors to weigh federal law enforcement priorities set by the attorney general, the seriousness of the crime, the deterrent effect of criminal prosecution and the cumulative impact of particular crimes on the community.

Some U.S. attorneys in states where marijuana has been legalized pushed back on the memo.

U.S. Attorney for the District of Colorado Bob Troyer said there would be no change to how his office handles marijuana-related offenses.

And U.S. Attorney for the Western District of Washington Annette Hayes in a statement stressed that her office has long been guided by the principles reiterated by Sessions on Thursday.

“As a result, we have investigated and prosecuted over many years cases involving organized crime, violent and gun threats, and financial crimes related to marijuana,” she said.

“We will continue to do so to ensure — consistent with the most recent guidance from the Department — that our enforcement efforts with our federal, state, local and tribal partners focus on those who pose the greatest safety risk to the people and communities we serve.” 

Still, it’s possible that some of the U.S. attorneys being appointed by Trump will be tougher on marijuana than their predecessors.

There are 93 U.S. attorneys across the country, all of them nominated by the president and confirmed by the Senate. 

While the president can fire U.S. attorneys, Stern said he’d be surprised if Trump removed an attorney for not cracking down on marijuana in states where it’s been legalized.

In one interview during the 2016 campaign, Trump expressed support for leaving decisions on marijuana sales up to the states.