Attorney General J. Beauregard Sessions made a splashy announcement today that many have worried might undermine the emerging marijuana industry. Like most Trump administration moves, it’s theater aimed at the dumbest corners of the GOP base. It’s likely to be forgotten by tomorrow, with no impact on the business.
Sessions is rescinding the Cole Memorandum, guidance issued to Asst. AG’s in 2011 discouraging federal drug prosecutions where a conflict existed between state and federal drug laws. Removing the instructions changes nothing in practical terms. The Obama Administration lacked the authority to tell federal prosecutors how to enforce the law. The memo merely let prosecutors know how efforts to prosecute state-legal marijuana operations would be received by the administration. They could still do it, but they’d be kissing off any chance of promotion or nomination to the bench. Thing is, even without that guidance and regardless of what the administration says, prosecutors know that pursuing marijuana producers is very bad for their careers.
Federal prosecutions against state-legal marijuana producers were already fading away before Cole. We were reaching the point where juries couldn’t be bothered to care about these activities and politicians were intervening with more and more force to thwart federal prosecutors. There are still a handful of cases pending against against state-legal marijuana growers, but they are in late stages of collapse. The case against Charles Lynch is probably the most egregious and absurd, a leftover Bush Administration mistake that hasn’t yet been resolved. A few people remain in jail, though Obama pardons reduced that number significantly. The Cole Memo aside, Congress in 2014 stepped in to deny funding for prosecutions of state-legal drug activities. The 9th Circuit has already cited this ban, commonly referred to as the Rohrbacher-Farr Amendment, as grounds to vacate convictions.
For those worried about the future of this industry there is a direct historical parallel. Fifteen years ago Bush’s AG, John Ashcroft, had a serious hard-on for porn. His campaign went flaccid for reasons that reflect conditions in the marijuana business today. Public hysteria had died down. The administration’s efforts looked pathetic and icky. Like marijuana today, porn by then was broadly seen as a harmless choice affecting only consenting adults. A wave of raids in ’02-’03 teased Republicans’ Christianist base, then faded as court cases flopped. The Bush Administration’s war on porn netted one or two sustained convictions and had no impact whatsoever on a booming industry.
If the Idiocrats in the Trump administration wanted to dent the marijuana business, it would take a carefully planned campaign, coordinated with sympathetic state level officials and executed with great care and discretion. That’s not how these people operate. Relax. This is one Trump mistake that’s unlikely to ruin any lives.