In a memo sent to all U.S. Attorneys last week, Attorney General Jeff Sessions stated that “prosecutors should follow the well-established principles that govern all prosecutions” in deciding which marijuana activities to prosecute. In a move that could open the door to chaos in the legal cannabis industry, Sessions proclaimed “given the Department’s well-established principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately”, in effect eradicating the 2013 Cole Memo. The January 4th action by the Department of Justice also vacated other marijuana-related memos, including the 2009 Ogden Memo, the 2014 FinCEN memo on banking and financial services, and two other James Cole-authored memos from 2011 and 2014.
“Today’s action directly contradicts what I was told [by Sessions]” said Colorado Senator Cory Gardner, calling it a “trampling of Colorado’s rights” and a “move that could put thousands of jobs and millions of dollars in revenue at risk.” Gardner added he would consider holding up his own support for any Trump-nominated judicial candidates. Many of those vacancies are for the very US Attorney spots for whom Sessions has now added cannabis enforcement to their duties. In fact, many local U.S. attorney offices in California and other cannabis-legal states have become freed from messing with most cannabis enforcement issues thanks to the specificity of the Cole Memo. Last year, Sessions said that Cole might be revisited, leaving many marijuana watchers to expect a modification, rather than an outright removal. This expectation was further reinforced by the fact that the Cole Memo had also been excluded from some 70 other Obama-era DOJ memos which Sessions threw out at the end of 2017.
But long-time anti-cannabis crusader Kevin Sabet (Smart Approaches to Marijuana) applauded the action. “It’s pretty clear that the federal policy is going to be that U.S. Attorneys will have discretion and the industry can no longer hide behind the Cole Memo and say that they’re protected,” said Sabet, who worked in Obama’s Office of National Drug Control Policy. Sabet added, “It’s going to dry up a lot of institutional investment that has gone toward marijuana in the last five years.”
Legacy cannabis firm Hoban Law agreed with Sabet’s assessment. “Sessions raises complex questions as to the sources and availability of private and institutional financing, premised on reliance upon the predecessor policies. Further, all pending and future deals need to consider the complexities of today’s action,” said a prepared response.
Federal courts in northern California and Washington state have told the DEA to back off certain enforcement actions deemed to be violating state’s rights. Sessions’ notes to field offices also hinted at new enforcement actions against medical marijuana states, despite the MMJ-protective Rohrabacher-Blumenauer budget amendment.
In the one-page, January 4th memo to DOJ prosecutors, Sessions wrote: “In deciding which marijuana activities to prosecute under these laws with the department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions … These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations of the crime, including 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.”
“This is disturbing news for the cannabis industry and the majority of U.S. voters who support legal cannabis,” said NCIA’s executive director Aaron Smith. “However, the rescinding of this memo does not necessarily mean that any major change in enforcement policy is on the horizon.” Smith added, noting that “This has been, and still will be, a matter of prosecutorial discretion.” Following the AG’s action, shares of publicly-traded cannabis firms were down 10-30%.