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Justice Department mulls litigation against states with legalized marijuana

010418 DOJ mulls pot litigation-pic
The announcement came just as Attorney General Jeff Sessions rescinded a 2013 memo written by then-Deputy Attorney General James Cole, which was interpreted as telling U.S. attorneys to make the prosecution of marijuana-related cases a lower priority. (AP Photo/Carolyn Kaster)

The Department of Justice said Thursday it is considering litigation against state governments that have broadly legalized marijuana.

That announcement came just as Attorney General Jeff Sessions rescinded a 2013 memo written by then-Deputy Attorney General James Cole, which was interpreted as telling U.S. attorneys to make the prosecution of marijuana-related cases a lower priority.

As long as state officials in states where marijuana was legalized prevented it from moving to states where it was still legalized, the federal government under the Obama administration said it would not stand in the way of states that legalized the drug.

When asked about litigation against states passing their own laws that are contrary to federal law, a senior Justice Department official said “further steps are still under consideration.”

The official noted that marijuana has remained illegal at the federal level, even as state governments have made cannabis legal in various ways in the wake of the Cole memo.

Now, U.S. attorneys could bring cases in their districts, at their own discretion, under the directive that marijuana possession and distribution is “against federal law."

“In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions,” Sessions wrote in the one-page memo, citing factors such as the seriousness of the crime and the impact of the crime on the community.

The Justice Department moves came days after marijuana became legal in California, and the official indicated that actions by that state and others could come into conflict.

“The Cole memo was interpreted as a safe harbor for the marijuana industry to operate in these states, and there is a belief that that is inconsistent with what federal law says,” the official said, adding that the 2013 memo created a “safe harbor” for marijuana sales.

In his memo, Sessions called the Obama-era memo “unnecessary.”

Officials declined to say if the new memo is a means to increase federal marijuana prosecutions.

“We believe that U.S. attorneys offices should be opened up to bring all of the cases they believe necessary to be brought,” the department official said Thursday.

The move by Sessions is not one that should come as a surprise. He told reporters in November the department was “working our way to a rational policy” on marijuana enforcement.

Six states have legalized recreational and medical marijuana, and allow the sale recreationally. Two states plus the District of Columbia have legalized both recreational and medicinal marijuana, but do not allow the outright sale of the drug. Another 21 states allow medicinal marijuana use only.

Where the line blurs is at medical marijuana.

The Rohrabacher–Farr amendment, passed in 2014, prevents the Justice Department from spending federal dollars to interfere with the implementation of state medical marijuana laws. The amendment was part of the most-recently approved government funding bill.

Justice Department officials said Thursday the department will continue to follow the law as passed by Congress — though did not shut down the idea that U.S. attorneys can bring prosecutions forward related to medicinal marijuana.

The decision by Sessions drew ire from pro-pot groups, as well as lawmakers.

"This move represents a broken campaign promise by the president,” said Tom Angell of the group Marijuana Majority. “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."

Congressional Cannabis Caucus co-chair Rep. Earl Blumenauer, D-Ore. called the plan "outrageous,” adding the decision goes against "the majority of Americans—including a majority of Republican voters—who want the federal government to stay out of the way is perhaps one of the stupidest decisions the Attorney General has made."

Minority House Leader Nancy Pelosi, D-Calif., called Sessions “war against Americans who legally use marijuana shameful,” adding that it “insults the democratic processes that played out in states across the country.”

Two Republicans lawmakers denounced the plan as well.

Sen. Cory Gardner, R-Colo, said the Justice Department “has trampled on the will” of Colorado voters — where recreational marijuana was approved by voters in 2012 — and did not rule out holding up department nominees as retaliation.

Sen. Lisa Murkowski, R-Alaska, said the decision is “disruptive to state regulatory regimes and regrettable.”

Murkowski, whose state decriminalized marijuana in 2003 and legalized it recreationally in 2014, said in a statement she had “repeatedly discouraged Attorney General Sessions from taking this action and asked that he work with the states and Congress if he feels changes are necessary.”

During the presidential campaign, now-President Trump said: "I think [marijuana] really is a local issue. When you look at what’s happened in Colorado as an example, it’s a local thing. I wouldn’t interfere with it. I think that’s something that really is very much up to the local area."