Two Steps Back: What Sessions' Latest Move Means for Pot in America

The Cole memo barred federal prosecutors from going after state-legal cannabis companies. If it's rescinded, will that be the end of legal pot?

Attorney General Jeff Sessions announced on Thursday that he would rescind the Cole Memo, which barred federal prosecutors from coming after state-legal cannabis businesses. Credit: Chip Somodevilla/Getty

Attorney General Jeff Sessions announced today that he plans to rescind the Cole memo, the Obama-era policy instructing federal prosecutors not to charge marijuana-related offenses in states where the drug is legal. Under the Department of Justice's new guidelines, prosecutors themselves will be able to decide the degree to which federal marijuana law is enforced, according to the Associated Press, which first reported the news on Thursday. The new guidelines could throw existing businesses and medical programs into legal jeopardy.

The decision comes just three days after California – the biggest state yet – legalized marijuana for all adults. (Medical marijuana has been legal in the state since 2005.)

Maria McFarland Sánchez-Moreno, executive director of the Drug Policy Alliance, tells Rolling Stone that she wasn’t surprised by the news, just disappointed. "Sessions has been making a lot of noise about marijuana for a long time, so it's consistent with with that," she says. "I think, politically, he's making a huge mistake, and I had hoped that he would have had more sense than to go up against such massive public support for marijuana legalization, but clearly his ideology has won out."

Now, Sánchez-Moreno says, Congress needs to step in to prevent a widespread crackdown. "If Sessions does rescind the Cole memo, it's up to Congress to act quickly to limit DOJ’s authority to act against states that have legalized marijuana, as they did with the Rohrabacher-Farr amendment." Rohrabacher-Farr is an amendment attached to spending bills every year since 2014, which prohibits the Justice Department from using federal funds to go after medical marijuana programs in states where they are legal. (A similar measure that would apply to medical and recreational marijuana was introduced by Rep. Tom McClintock (R-CA) in 2015, but it failed to pass.)

On Thursday, Rep. Earl Blumenthal (D-OR), one of Congress’s biggest advocates for legalization, blasted the "outrageous" new guidelines as "perhaps one of the stupidest decisions the Attorney General has made” in a statement. “One wonders if Trump was consulted – it is Jeff Sessions after all – because this would violate his campaign promise not to interfere with state marijuana laws," Blumenthal said.

Other members of Congress were also quick to chime in. Sen. Kirsten Gillibrand, co-sponsor of the CARERS Act, called Sessions’ reported decision "a direct attack on patients” in a statement and urged her Senate colleagues to support the bill, which would protect states that have legalized medical marijuana from federal intervention. "Parents should be able to give their sick kids the medicine they need without having to fear that they will be prosecuted. Veterans should be able to come home from combat and use the medicine they need without having to fear they will be prosecuted," Gillibrand said.

Marijuana businesses, those most likely to be targeted under the new policy, were grappling with the news Thursday, and trying to understand the potential consequences. Erik Knutson, CEO of Colorado-based Keef Brands, which makes cannabis-infused products, says he's most worried about the impact the decision could have on businesses' ability to use banks. When Colorado legalized recreational marijuana in 2014, financial institutions "basically crafted all of their banking policies around the Cole memo in 2013 to make sure the companies are compliant with federal law."

"This reversal throws into doubt that legality and could, potentially, lead to violent crime: if the banks decide to pull out, cash transactions will become the norm again, and that leaves employees, managers and anyone dealing with cash [vulnerable]," Knutson says. (On Thursday afternoon, the U.S. attorney for Colorado said he would not change enforcement in the state because of the new policy.)

Despite the uncertainty, Knutson remains cautiously optimistic that Sessions' decision could compel Congress to act. He notes that during his confirmation hearings Sessions said it was Congress' responsibility to decide the schedule – the classification of how dangerous and addictive a drug is – and DOJ's responsibility to enforce the laws that pertain to each schedule. "My hope would be that this gets Congress off their asses," Knutson says, and forces them to act to re-schedule or de-schedule marijuana.

Arnaud Dumas de Rauly, chief strategy officer of The Blinc Group, a vapor and cannabis business incubator, is, for his part, defiant. The industry is already too large and too profitable, he says – worth $7.2 billion and accounting for an estimated 150,000 jobs in 2016 – for the government to shut it down. It's overwhelmingly popular too; 64 percent of Americans, including a majority of Republicans, favor legalization, according to a Gallup poll taken in October. "They're setting themselves up for a revolution if they do this," Dumas de Rauly says.