Marijuana and the New Attorney General: Why You Should Care

vibrant bright cheerful sky over a highwayA few weeks back, our nation’s current attorney general, Eric Holder, announced he would be resigning the position he has held since the start of the Obama administration, once his replacement is named and confirmed by the U.S. Senate. Holder’s tenure is viewed somewhat as a mixed bag — earning kudos for his efforts to reinvigorate the civil rights division at the DOJ, but also receiving criticism for failing to shut down Guantanamo or to prosecute financial crimes in the wake of the 2008 financial meltdown. With Holder stepping down, the conversation turns to speculation about who President Obama will appoint as the new AG, and the positions and policies of his replacement.

Our readers, of course, are concerned about the direction the new attorney general will steer federal drug policy. As a member of the executive branch, the nation’s top law enforcement officer and legal advisor cannot, for example, unilaterally decide to re-schedule or exempt marijuana from the Controlled Substances Act. That is an action which would require cooperation with several other federal agencies or a measure in Congress.

Realistically speaking, few foresee full-blown legalization of marijuana on a federal level in the very near future anyway, so at this point it is more important to pay attention to federal policy rather than to the law. And that is where the attorney general comes in. There is an important distinction to understand here — the attorney general and Department of Justice have little ability to actually create “law” — rather, the AG must take a more subtle approach by implementing policies and making strategic decisions (e.g., where and when to exercise prosecutorial discretion, which investigations to initiate, etc.).

Many in the legal cannabis industry are familiar with the two “Cole memos” issued by Deputy Attorney General James Cole in June 2011 and August 2013 and the 2009 Ogden memo that offered guidance to the dozens of United States attorneys (i.e., federal prosecutors) around the country as to the federal government’s attitude towards legalized medical, and most recently, recreational marijuana. To some extent, these memoranda showed a certain flip-flopping on the part of the Obama administration.

In 2009, Ogden stated that the prosecution of “significant” drug traffickers and the disruption of drug manufacturing were the “core” priorities, and that U.S. attorneys should not “focus federal resources in [their] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Ogden went on to say that patients and caregivers in particular should not be targeted, though “commercial enterprises” were still an enforcement priority.

Cole’s first memo in 2011 backpedaled on the Ogden memo’s position, noting an “increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes” and warning that “the Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law.” Then in 2013, drug policy reform advocates and canna industry participants alike heralded Cole’s second memo as a new era in federal enforcement of the CSA against state-legal cannabis. The new guidance outlined the eight enforcement priorities (basically, a no-no list for those trying to operate legitimate marijuana businesses), and went so far as to concede that “[o]utside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws” and “the existence of a strong and effective state regulatory system, and an operation’s compliance with such a system, may allay the threat [to federal enforcement priorities].”

But what happens when Cole’s boss, Holder, leaves office? What “enforcement priorities” might the new AG have? Will the replacement crumple up and toss out the 2013 Cole memo? These questions are the answer to the query why you should care about who Obama appoints to this all-important position in the DOJ. The Ogden and Cole memos are only “guidance” – they are policy, not law. They are not binding on a future AG. So if the cannabis industry wants to continue to operate under a somewhat permissive federal enforcement regime, industry participants had better lobby for an AG who will continue Holder’s softening of drug policy. (Besides the changed approach to state-legal marijuana, Holder is also credited with pushing for reforms in sentencing, disenfranchisement of the formerly incarcerated, among other improvements.)

Most of the names being tossed out as possible appointees have some sort of track record from which their attitudes towards marijuana might be gleaned. (Read here and here for discussions of the frontrunners.) One name surely familiar to Washington readers is Jenny Durkan, who stepped down as the U.S. attorney in Seattle only days ago. Durkan has earned praise for reforms made in her federal district, including implementing a drug court program, which allows those charged with drug crimes to enter court-approved counseling rather than serve time in prison. Durkan’s nomination would be warmly received in the pot-friendly Pacific Northwest and in cannabis industry circles around the country.

The bottom line here is that the AG has power to influence law and how it is enforced, even if he or she does not actually create it. In this industry, where the specter of “the feds” is always looming, it is crucial that the leader of the DOJ takes a progressive view of marijuana. Every other industry and interest group will be lobbying for their candidate of choice, and this industry should be no different.