Above Photo: Jean Morrison/ Flickr
Note: Margaret Flowers and Kevin Zeese discussed the repeal of the Cole Memo by Attorney General Jeff Sessions. The Cole Memo, put in place during the Obama presidency by the Department of Justice, allowed legal adult use marijuana policies put in place by states to take effect so long as certain problems, e.g. sale of marijuana in other states, did not occur. Hear our discussion of Jeff Sessions on Legal Marijuana here.
It’s been a month since U.S. Attorney General Jeff Sessions rescinded the Cole Memo, Obama-era Department of Justice guidance on enforcement of federal law in states that legalized marijuana in some form.
Sessions’ marijuana policy shift didn’t just inject uncertainty into the legal cannabis industry — it empowered the Justice Department’s U.S. attorneys to enforce — or ignore — federal marijuana laws.
U.S. attorneys are the chief federal law enforcement officers within 93 districts throughout the United States, Puerto Rico, Virgin Islands, Guam, and the Northern Mariana Islands. They’re nominated by the president and confirmed by the Senate.
U.S. attorneys have three primary duties, according to the Justice Department’s website.
• the prosecution of criminal cases brought by the Federal Government;
• the prosecution and defense of civil cases in which the United States is a party; and
• the collection of debts owed the Federal Government which are administratively uncollectible.
So where do the U.S. attorneys stationed in the nine states (and Washington, D.C.) that have legalized recreational marijuana stand? Here’s what we know about the top federal prosecutors in those districts one month into the post-Cole Memo paradigm.
Alaska
U.S. Attorney: Bryan Schroder
Nominated by President Donald Trump last July, confirmed by the Senate last November.
Soon after Sessions’s announcement, Schroder said in a statement that his office will continue to follow long-established principles in deciding which cases to charge, including following federal law enforcement priorities.
“The highest priorities of the U.S. Attorney’s Office in Alaska are consistent with those of the Justice Department nationally: combating violent crime, including as it stems from the scourge of drug trafficking,” he said.
That was enough of a reassurance for state Marijuana Control Board chairman Peter Mlynarik. The Soldotna, Alaska, police chief resigned and said that Sessions’ decision strips away the underpinnings for the legal marijuana industry in Alaska.
California, Northern District
U.S. Attorneys: Position vacant
The very day Sessions’ announced his marijuana policy shift, the U.S. Attorney for the Northern District of California, Brian Stretch, stepped down. His departure allows the attorney general to appoint an interim U.S. attorney to oversee some 20,000 square-miles of the Golden State stretching from Monterey all the way north to Humboldt, Mendocino and Del Norte counties and including the entire Bay Area. Stay tuned to The Cannabist for news on Sessions’ pick for the post.
California, Eastern District
U.S. Attorney: McGregor Scott
Nominated by Trump last November, appointed as interim U.S. Attorney last December.
Scott is a well-known commodity in California’s cannabis industry.
He grew up in Humboldt County, and previously held the post from 2003 to 2009 when he was appointed by President George W. Bush. During that period he prosecuted cases that sent fear throughout the medical marijuana industry, The Sacramento Bee reported.
Scott began his second go around at the job in an interim capacity on Dec. 29, 2017, meaning he only served six days under Cole Memo guidance. In the wake of Sessions’ decision, Scott’s office issued the following statement:
“The cultivation, distribution and possession of marijuana has long been and remains a violation of federal law for all purposes. We will evaluate violations of those laws in accordance with our district’s federal law enforcement priorities and resources.”
California, Central District
U.S. Attorney: Nicola Hanna
Appointed as interim U.S. Attorney on Jan. 5.
Los Angeles last month launched recreational marijuana sales, even thought their new U.S. attorney has thus far stayed mum on marijuana prosecutions, according to Southern California Public Radio.
The Central District of California includes Los Angeles, Orange and five other counties. Neither Sandra Brown, the district’s outgoing U.S. attorney, nor Hanna, who started his job as interim U.S. Attorney the day after Sessions quashed the Cole Memo, would comment to SCPR on the new policy.
Another former U.S. attorney for that district, Robert Bonner told SCPR that he thinks Hanna will have bigger fish to fry.
It’s the most populous federal district in the country and it deals with everything from national security prosecutions to gang crimes to the opioid crisis, he told the SCPR
California, Southern District
U.S. Attorney: Adam Braverman
Appointed as interim U.S. Attorney last November.
Braverman has staked his career on pursuing large-scale international drug trafficking cartels, according to the first line of his Justice Department bio. He indicated in a statement reported by NBC 7 San Diego that he would keep his eye that big picture:
“We will continue to utilize long-established prosecutorial priorities to carry out our mission to combat violent crime, disrupt and dismantle transnational criminal organizations, and stem the rising tide of the drug crisis.”
Colorado
U.S. Attorney: Bob Troyer
Acting U.S. attorney since 2016 and appointed interim U.S. attorney last November.
Soon after the Sessions announcement, Troyer said that he would continue to focus on “identifying and prosecuting those who create the greatest safety threats.”
Days later, he addressed members of the state’s congressional delegation via a conference call, telling them that the new federal guidelines would not lead to an increase in marijuana prosecutions in the state at the expense of other high-priority law enforcement issues, including immigration, the opiod crisis and violent crime, The Cannabist reported.
According a press release issued by Colorado Congresswoman Diana DeGette following the call, participants were pleased to hear where things stand in their state.
“If federal authorities were to suddenly reverse course and take punitive measures to undermine Colorado’s marijuana statutes, it could create a chilling effect on an industry that employs thousands of people in our state, where sales now exceed $1 billion per year,” the statement said. “We are united in the view that the federal government shouldn’t subvert the will of our citizens expressed at the state level.”
Maine
U.S. Attorney: Halsey B. Frank
Nominated by Trump last July and confirmed by the Senate last October.
Maine’s top federal prosecutor said in a statement Jan. 9 that his office will not make prosecuting marijuana users a priority. Instead, he said his office will focus on traffickers of “hard drugs” such as opiates, cocaine and crack.
The state’s voters approved a law legalizing recreational marijuana in November 2016. Beginning this month, recreational sales are legal, but Republican Gov. Paul LePage‘s administration has not instituted a licensing and regulatory framework for those sales.
Massachusetts
U.S. Attorney: Andrew Lelling
Nominated by Trump last September and confirmed by the Senate last December.
The top federal prosecutor for Massachusetts in the immediate aftermath of Sessions’ decision offered no assurances for legal marijuana businesses.
Lelling said in a Jan. 8 statement that while he understood the desire for guidance on the federal approach to the state’s voter-approved recreational marijuana law, he “cannot provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”
He followed up that statement on Jan. 24, telling reporters gathered in his Boston office:
“The number one enforcement priority for my office is the opioid crisis. Twenty one hundred people in Massachusetts were killed by opioid overdoses last year, not marijuana overdoses, so that is where my resources are going right now.”
Nevada
U.S. Attorney: Dayle Elieson
Appointed interim U.S. attorney Jan. 3.
The appointment of Elieson, a former assistant U.S. attorney in Texas, the day before Sessions rescinded the Cole Memo baffled Nevada legal experts, The Las Vegas Review-Journal reported.
She has yet to release a statement on the enforcement of federal marijuana laws, leading Sen. Catherine Cortez Masto, D-Nev., to tell the Reno Gazette-Journal that she’s as anxious as everyone else to find out her take on the Trump administraion’s marijuana policy. The state’s freshman senator also said she’s encouraging the acting U.S. attorney to continue the Obama administration’s hands-off approach to recreational pot.
U.S. Attorney for the District of Oregon Billy J. Williams (Courtesy U.S. Department of Justice)
Oregon
U.S. Attorney: Billy Williams
Became acting U.S. attorney in April 2015 and Trump nominated him again last November.
Of the U.S. attorneys serving in states that have legalized recreational marijuana, Williams has been the most active in the aftermath of Sessions marijuana policy shift.
He issued a statement immediately on Jan. 4, and then in an editorial published Jan. 12 in The Oregonian, Williams said he has, “significant concerns about the state’s current regulatory framework and the resources allocated to policing marijuana in Oregon.”
“Before charting a path forward for the enforcement of marijuana in Oregon, we must see how the state mitigates the public safety and health issues raised here,” he added, while noting that he plans to send invitation ot federal, state local and tribal law enforcement in the state – as well as to citizen groups, public health organizations and citizens groups, “to attend a summit to address and remedy these and other concerns.”
He followed up on the op-ed at the beginning of February, convening an unprecedented summit of influential federal law enforcement representatives, state officials, and marijuana industry members to discuss Oregon’s “formidable” problem with marijuana overproduction.
While Oregon Gov. Kate Brown reportedly told members of her administration that lawful Oregon businesses were not targets of law enforcement, Williams did not mince words:
“Here’s what I know in terms of the landscape here in Oregon, and that is, we have an identifiable and formidable marijuana overproduction and diversion problem,” he said. “And make no mistake about it, we’re going to do something about it.”
Vermont
U.S. Attorney: Christina E. Nolan
Nominated by Trump last September and confirmed by the Senate last November.
Less than a week after Sessions’ marijuana memo, the Green Mountain State became the ninth to legalize recreational marijuana and the first in the country to do so by an act of the Legislature rather than through a referendum by voters. While the law now alows adults to possess and grow small amounts of marijuana, it does not set up a system to tax and regulate its production and sale.
After the legalization bill passed the state house, Vermont’s Rutland Herlad reported that the U.S. attorney is focusing on issues other than marijuana.
“U.S. Attorney Nolan is continuing to focus on the heroin issue in Vermont, drug trafficking, violence associated with drug trafficking and gun violence,” a spokesperson for Nolan told the Hearld. “That remains her focus. I can only outline her initiative, I can’t speak for her.”
Asked by the Herald whether Sessions’ announcement rescinding the Cole Memorandum would affect prosecution in Vermont, the spokesperson declined to comment.
Washington, Eastern District
U.S. Attorney: Joseph Harrington
Appointed as interim U.S. Attorney on Jan. 5.
Harrington issued a statement on Sessions’ marijuana moves the day he was appointed interim U.S. attorney. In it he said that, “public safety is always at the fore.”
“This United States Attorney’s Office will continue to ensure, consistent with the most recent guidance from the Department of Justice, that its enforcement efforts with our federal, state, local, and tribal law enforcement partners focus on those who pose the greatest safety risk to the communities in Eastern Washington, by disrupting criminal organizations, tackling the growing drug crisis, thwarting violent crime, and corralling white-collar fraudsters in this District,” he said.
Washington, Western District
U.S. Attorney: Annette Hays
Acting U.S. attorney since October 2014, when the district’s top prosecutor resigned and President Barack Obama declined to make an appointment.
Like her colleague on the other side of the Cascades, Hays released a statement Jan. 4 pledging to prioritize public safety as it pertains to the state’s marijuana laws.
As a result of doing so, she wrote, “…we have investigated and prosecuted over many years cases involving organized crime, violent and gun threats, and financial crimes related to marijuana.”
An analysis by Daniel Shortt of Seattle law firm Harris Bricken uncovered no examples of Hayes’ office prosecuting a licensed marijuana business since becoming accting U.S. attorney in October 2014.
Washington, D.C.
U.S. Attorney: Jessie Liu
Nominated by Trump last June and confirmed by the Senate last September.
The precarious state of legal marijuana in the nation’s capital makes Liu’s position all the more important. Recreational marijuana is legal in the District, but it’s still illegal to buy or sell it. Instead, the city has developed a unique marijuana “gift economy.” These businesses — many offering delivery — sell items like T-shirts, posters, or coffee at high prices and throw in a quantity of marijuana as a “gift.”
Liu’s office released a statement to the Washington Post that said her office’s prosecutors will use “discretion” in selecting which cases it pursues.
“I would be surprised if anything really changes under this new policy,” said Channing D. Phillips, the District’s former U.S. attorney who served from 2015 to 2017, told the Post. “I don’t see a return to the office prosecuting simple marijuana possession cases. The focus will be on traffickers and large organized crime. But not simple possession. The law in D.C. allows for personal use.”