Attorney General Jeff Sessions Rescinds Cole Memorandum

Attorney General Jeff Sessions rescinded the Cole Memorandum on Thursday when the Justice Department issued a new memo stating that previous guidance was rescinded effective immediately. He called it a return to the rule of law.

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” said Attorney General Jeff Sessions. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”

Sessions has bounced back and forth with regards to the Cole Memorandum. Alternating between being very vocal that he planned to enforce the current law, but then not taking any real action. Not long ago, he did rescind several guidance issues from the Justice Department but neglected to include the Cole Memorandum in that list.

“This move represents a broken campaign promise by the president,” said Tom Angell of Marijuana Moment. “He clearly and repeatedly pledged that he would respect state marijuana laws if elected. With polls showing that marijuana legalization is way more popular than the president is, this will likely turn out to be a huge political disaster for the administration. Either way, it’s not going to stop even more states from modernizing their cannabis laws.”

The National Cannabis Industry Association said, “The rescinding of this memo does not necessarily mean that any major change in enforcement policy is on the horizon. This has been, and still will be, a matter of prosecutorial discretion.” This is true. Sessions basically put the onus on state attorney generals to choose whether they want to prosecute the law. Some state AG’s support legalization, while others do not. So in some states like California, the state AG supports legalization and is unlikely to take action.

“Rescinding the Cole Memorandum makes it easier for federal prosecutors to commence criminal actions against companies and individuals in the cannabis industry,” said Stanley Jutkowitz, senior counsel in the Washington, D.C. office of law firm Seyfarth Shaw. Mr. Jutkowitz pointed out that even with yesterday’s appointment of 17 new U.S. Attorneys, it remains to be seen whether federal enforcement of marijuana laws will increase as a result of the recession of the Cole Memorandum. “Whether or not federal prosecutions increase, the rescission of the Cole Memorandum is sure to cause many businesses and investors in the cannabis industry to rethink their strategies,” he added.

The Rohrabacher-Blumenauer Amendment

While the Cole Memorandum was be rescinded, this doesn’t affect the Rohrabacher-Blumenauer amendment that denies funds for the Justice Department to enforce the law. However, it does remove an umbrella of protection from all the businesses that have begun operating in the industry.

“If Rohrabacher-Blumenauer is re-authorized, which is likely but not certain, then Session’s pronouncement today will be more bark than bite—regardless of the change in Policy the Federal government won’t permitted to pursue medical marijuana prosecutions unless there are gross violations by a marijuana operator, such as diversion of cannabis across state lines,” said the Puzzle Group Law firm. “If Rohrabacher-Blumenauer is not reauthorized then in theory the Department of Justice could institute a complete crackdown on marijuana. As this amendment has been extended by Congress 7 times I am cautiously optimistic that it will be re-authorized and things will be business as usual.”