On Thursday, U.S. Attorney General Jeff Sessions announced he was rescinding the Cole memo, which effectively ends the Obama-era federal policy of non-interference in states which have legalized adult-use cannabis. This prompted a firestorm of press conferences by state officials, particularly those in California, Washington, Colorado, and Oregon, as well as scathing criticism from government leaders like Senator Cory Booker and Rep. Keith Ellison. Cannabis activists, advocates, and business owners went into a frenzy on social media, blasting Sessions and President Trump.
However, the Cole Memo was not a law. Technically, it wasn't even enforceable. It was simply a set of federal guidelines regarding states that legalized weed. Once rescinded, it frees prosecutors to more aggressively enforce federal law on state-legal cannabis operations.
So far, not one U.S. Attorney in any of the states that matter (in other words, those with some form of pot legalization) have announced they would change how they enforce marijuana laws. That includes U.S. attorneys in California, Colorado, Washington State, and Oregon.
Members of Sessions' own party expressed their disappointments in response to the news. Cory Gardner, a Republican senator from Colorado, essentially called both Sessions and Trump liars, who flip-flopped on their promises during Session's 2016 confirmation hearing to maintain a hands-off approach toward legal weed.
In a statement issued that same day, Gardner threatened to hold up all upcoming Justice Department nominees for U.S. attorney positions unless Sessions changed his tune.
Despite the outcry from other politicians and cannabis advocates, rescinding the Cole Memo may simply be another case of smoke without fire from the Trump administration. Still, the cannabis industry isn't taking the threat lightly, especially now that adult-use legalization in California is officially in effect, with Massachusetts and Maine expected to join the six other states that currently have recreational cannabis programs later this year.
Perry Salzhauer, an attorney with the Green Light Law Group in Oregon, told MERRY JANE by phone, "The important thing about the release today is not about what it does say, it's about what it doesn't say."
Salzhauer notes the Department of Justice did not mention any changes regarding enforcement priorities. At the moment, when it comes to the War on Drugs, the DOJ has prioritized the opioid crisis as public enemy number-one. "If this is followed up with new enforcement priorities," he cautions, "then we've got a problem. A big problem."
Salzhauer's sentiments were echoed by David Feuerstein, a New York-based attorney and partner at the law firm Feuerstein-Kulick. He told MERRY JANE that rescinding the Cole memo "doesn't change that much."
"The only thing that really happened today was prosecutorial discretion was handed back to the U.S. attorneys in each of the states," Feuerstein explained. "The U.S. attorneys have already said there's not going to be any change to their enforcement."
Both Feuerstein and Salzhauer stressed the best — and right now, the only — legal strategy going forward is for canna-businesses to remain compliant with state weed laws.
"Compliance is still the number one advice we can give," said Feuerstein. "As long as you're compliant with the state regulations, then at least, from a medical [marijuana] perspective, you should be protected by Rohrabacher-Farr. You also give any authority less reason to prosecute."
"It's going to be all about whether or not the marijuana licensee — or business, or even the user on the street — complies with the [state] law," said Salzhauer.
One industry leader, Chad Sykes, the founder of Indoor Harvest Corp. in Houston, TX, took a rather an unexpected position: he says he supports Sessions' decision to get rid of the Cole memo.
"Something needs to happen to get Congress to act," said Sykes. "The Cole memorandum, at the end of the day, was just a band-aid. The uncertainty was still there regardless if the memo was in place or not."
Similarly, as cannabis activist Tom Angell wrote in an article titled "Why Sessions's Anti-Marijuana Move Might Be Good for Legalization," "Whereas the marijuana industry has been operating in a sort of legal gray area under the Cole memo and the medical cannabis budget rider, the Sessions move forces marijuana to the forefront of American politics, where a breaking point may finally be reached."
He cites Congressman Rod Blum, Republican of Iowa, who signed on as a co-sponsor of legislation that would let states determine their own recreational cannabis laws without the influence of the feds. In a tweet, Rep. Blum said Sessions's dismantling of the Cole memo inspired his actions.
Sykes, whose Texas operation is strictly for medical cannabis, remains protected under the Rohrabacher-Farr (now Rohrabacher-Blumenauer) amendment for another 14 days, when Congress will decide if it's to be re-included in the government's next spending bill. He continues, "I don't get the impression that Jeff Sessions is necessarily against cannabis, but he just generally wants everything to be done under the rule of law." Not everyone agrees, of course
"A majority of states have already passed some sort of [legalization] legislation," said Sykes. "There's no reason for it not to get approval in the Senate."
As mentioned, Congress will vote on an appropriations bill on January 19th to determine how the federal government's funds are spent. Likely, the existing riders that shield state-legal medical marijuana programs from federal interference will once again make it into the bill.
As for recreational marijuana businesses, however, that may be up in the air — and could potentially end up on the chopping block.