With this month's elections having doubled the number of states that permit recreational marijuana use (the grand total stands at eight, plus the District of Columbia), the choice of the new US Attorney General is important to those businesses that manufacture and sell "legal" marijuana and to the banks and credit unions that serve (and want to serve) those businesses. This week's news that President-Elect Trump has selected Senator Jeff Sessions as his nominee for that position has been cited by the "pot luck" crowd as a bad omen. The Denver Post's "Cannabist" column elaborates.
The Senator nominated to serve as the next U.S. attorney general is on record saying cannabis is “dangerous” and that “good people don’t smoke marijuana.”
President-elect Donald Trump’s reported pick of Alabama Sen. Jeff Sessions as the nation’s top law enforcement officer should “scare the hell out of the marijuana industry,” drug policy expert John Hudak told The Cannabist on Friday.
Sessions might have qualified his comment about "good people" by changing "don't smoke" to "no longer smoke," but the former tokers who bang out this blog won't hold that judgment against him. It is amusing that he doesn't seem to understand that smoking is only one method of getting a mile high. Many prefer feeding the munchies by chomping on "edibles."
I had expected for some time that Chris Christie would be first in line for the AG slot. However, recent convictions of his former aides in a blocking-a-bridge-too-far scandal, or, perhaps, Christie's always pleasing personality, might have alienated The Donald, who only allows one bloviating gas bag on the bus at any one time, that gas bag being himself. At any rate, while Christie was outspoken in threatening state-legal recreational marijuana businesses with the Fist of Doom, I don't think Sessions will be a cool breeze in comparison for our friends in the land where Mary Jane reigns.
Thus, relying on continued forbearance of the US Justice Department from enforcing federal drug laws seems to me to be even more dicey than it did before the election. A Jeff Sessions-piloted US Justice Department could sweep into Colorado in early February 2017 and indict not only the pot business owners, but the banks and bankers who bank them. Even closing the bank accounts and lines of credit now aren't technically going to save any bank (or, again, the bank's directors, officers, and employees) from being charged with past criminal behavior, because of those pesky statues of limitations. I can see a guy like Sessions picking on some businesses and banks or credit unions that serve them in Colorado (which, being first out of the gate, has become the poster child for state-legal, federal-illegal marijuana businesses and users) and crushing them like overripe grapes, just to send a message like "Hurts, don't it? Tell your friends!" I can also see him taking a more subtle approach, but one that would be just as painful in the long run. As a legalized marijuana opponent puts it, "[T]here are many things you can do with a letter and a stamp that would stop marijuana businesses from flourishing."
The linked article notes that the Cole Memorandum (and the FinCEN guidance that followed it), upon which marijuana-banking financial institutions are hanging their hats, are "non-binding guidelines" that "could quickly be rescinded." They could be, but the guidance itself states that it does not provide a defense to prosecution. Instead, it merely provides "guidance" as to what the then-current (2013-14) enforcement priorities of the US Justice Department were. Priorities change without notice. It also admits that the businesses and banks engaged in the business are violating a number of federal criminal laws, including money laundering.
The Cannabist also correctly observes that The Donald has "wavered" on the legalized marijuana issue and the states rights issues involved. On the campaign trail, he seemed in one breath to claim it was a "state-by-state" decision, but in the next breath to claim that we should first look at Colorado because it was having problems, then in the next breath to claim he was talking about medical marijuana. He never addressed specifically the conflict between federal and state criminal laws or the effect of the Supremacy Clause of the US Constitution (a concept that might have caused his "do" to sprout wings and fly to Morocco). He also promoted the fact that he is a "law-and-order" kind of guy. We assume he was not addresseing his television viewing preferences. While drug enforcement does not seem to be a previously articulated policy priority for him, he apparently (depending on the day of the week and the current mood of Melania) feels strongly both ways. While he's focused during the early days of his administration on more important matters, like building The Wall With a Door, tearing up NAFTA, crushing the dreams of The Dreamers, and knocking back Stoli Kamikazes with Vlad, he's likely to leave issues of lesser importance, like persecuting state-legal, federal-illegal pot businesses and their banks, to his Attorney General. If Sessions is that A.G., then those dark clouds hanging over the summit of Pikes Peak could become more ominous.
Drug policy expert John Hudak of the Brookings Institution sums up my thoughts about the future nicely.
"I think there is a chance that, a year from now, the marijuana industry looks exactly like it does today," he said. "I think there’s a pretty big chance that the marijuana industry looks very different and finds itself in the throes of battling an activist attorney general."