When former Attorney General Jeff Sessions resigned Nov. 7 at the president’s request, speculation was reignited about the U.S. Department of Justice’s stance on states’ push to legalize medical and recreational marijuana.
Matthew Whitaker, President Donald Trump’s pick for acting attorney general, has so far been silent about his position on states’ efforts to legalize the Schedule I controlled substance.
While Whitaker hasn’t spoken at length about his views on marijuana, during a 2014 primary debate for the U.S. Senate nomination in Iowa, he said a state law that would legalized medical cannabidiol would positively affect families.
But according to footage of the debate, hosted by Iowa Public Television, Whitaker also said he was concerned about how the Department of Justice enforces federal law when it comes to marijuana.
“I am gravely concerned that we are now going to go back and forth between who’s in the White House and what their drug enforcement policy is,” Whitaker said during the debate.
Colorado Sen. Cory Gardner expressed concern that Whitaker does not hold similar views to Trump, who publicly announced his support of Gardner’s legislation on marijuana legalization.
“I think he is at odds with the president,” Gardner said in an interview with The Durango Herald. “The new attorney general, the one that will be replacing the acting attorney general, is going to receive a lot of questions from me and my colleagues about where he stands on federalism and the ability of states to legalize.”
Gardner was previously critical of Sessions when the former attorney general gave federal prosecutors more leeway to enforce federal laws against pot.
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When Whitaker was criticizing the Justice Department in 2014, he was referring to the former Deputy Attorney General James Cole’s memorandum on marijuana law enforcement policy.
The Cole Memorandum, issued in August 2013, focused the department’s efforts to enforce federal law on marijuana in certain situations, including the prevention of distribution to minors, revenue going to gangs or cartels, interstate marijuana distribution and state-authorized activity being used as a cover for trafficking. The Justice Department has four previous iterations of this memo, but this version was groundbreaking because it reallocated sources from marijuana enforcement to more serious drugs or cases.
Sessions, however, rescinded the memo in January in a controversial decision that sparked speculation on how his personal views of marijuana may affect the legalization movement.
Both Colorado senators, elected to represent a state with a booming recreational marijuana industry, publicly expressed concern. Sen. Michael Bennet, a Democrat, sent a letter to Sessions to encourage him to rescind his memo, which he dubbed “nebulous federal interaction” inviting “chaos,” essentially requesting a reinstatement of the Cole memo.
“By rescinding the Cole Memorandum, the Trump administration has created more uncertainty and confusion for businesses, patients and consumers,” Bennet said in a statement Sunday. “I hope the next attorney general corrects course to respect and support the marijuana laws of states like ours.”
Earlier this year, Bennet and Gardner sent a letter to the Financial Crimes Enforcement Network to encourage it to retain regulations set in 2014 that would allow banks to serve marijuana businesses and dispensaries while still complying with the Bank Secrecy Act.
Gardner said in an interview with the Herald that Sessions’ position on marijuana legalization had a significant impact. Gardner said that Sessions had promised him he would not rescind the Cole memo, and when he did anyway, Gardner held off on Sessions’ judicial nominations so he would “change direction.”
Gardner acknowledged on Twitter that he and Sessions had disagreements, which he said later in an interview were based on the department’s role in legalization.
“With respect to new leadership at DOJ, I will remain committed to defending the rule of law and the rights and decisions of Coloradans. I look forward to continuing to work with the president to fulfill his campaign position to leave the regulation of marijuana to the states,” Gardner tweeted.
Gardner said he believes Trump is and has been open to working toward legalization, so the ideal pick for the next attorney general would align with those views as well. He said Sessions’ actions led directly to Trump supporting his legislation, especially his STATES Act, which would exempt individuals from federal prosecution if they are in compliance with state marijuana laws.
The bill would allow states to legalize marijuana for medical and recreational purposes, as Sen. Elizabeth Warren, D-Mass., and Gardner’s home states have done. Gardner said that while the bill may open a path to legalization, the purpose is to focus on states’ rights.
“The fact that we have states that have moved forward on legalization has created a lot of conflict between the federal government, the state government … and we have to fix this,” Gardner said. “From a federalism standpoint, giving states the ability to determine whether they want to legalize medical and recreational marijuana and then allowing the federal government to recognize the state authority, I think, is a positive step forward that would resolve conflict between federal and state law.”
Gardner said he will continue to push the bill through the next Congress and spoke to Senate Majority Leader Mitch McConnell in November about strategy.
If the STATES Act is passed and signed into law, states would be able to opt out of federal law, which classifies all marijuana as a Schedule I drug under the Controlled Substance Act. Currently, the federal government classifies cannabis as highly addictive with no medical value, meaning possession or sale of it can lead to arrest by authorities.
Thirty-three states have legalized medical use of marijuana, but only 10 states have legalized recreational use, including Colorado, Massachusetts, and, most recently, Michigan. More states will be able to legalize medical and recreational use of marijuana without the worry of federal authorities intervening if Gardner’s act is passed.
One of the many issues that the STATES Act may resolve is banking. Marijuana dispensary owners struggle with finances because most banks follow federal regulations and are unable to hold accounts with money earned from federally illegal activities, such as the sales and distribution of marijuana.
To solve the issue, Gardner and Bennet cosponsored the Secure and Fair Enforcement (SAFE) Banking Act of 2017, which would ensure that legal cannabis businesses can access banking services, but the bill is still awaiting a vote from the Senate.
Gardner said there is more work to be done, but recent legislation may get the ball rolling, like the Farm Bill’s provisions on legalizing hemp. He hopes that legalization legislation will continue to garner bipartisan support as the STATES Act has.
Emily Martin is a student at American University in Washington, D.C., and an intern for The Durango Herald.