After almost a year, Attorney General Jeff Sessions finally fired the first real shot in his long-awaited war on legal marijuana Thursday. But the people on the front lines of the booming pot industry he wants to attack aren’t flinching – and the members of Congress most supportive of state-level cannabis decision-making say Sessions’ tough talk is a strategic blunder that only strengthens their hand.
In a terse three-paragraph memo, Sessions rescinded Obama-administration guidance urging federal law enforcement to stay out of state-level legalization experiments. The brief document doesn’t actually change much in practical terms – United States Attorneys (USAs) had the same discretion then as now to go after any cannabis company or user they believe merited investigation and prosecution – but Sessions made his intent crystal clear in an accompanying press release.
“[T]he previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out [their] mission,” he said. His revised guidelines will help “to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”
Such a move was long anticipated, given Sessions’ adamantly ignorant career-long stance: that “good people don’t smoke marijuana,” that the drug drives violent crime no matter what the statistics say, and that scientific evidence for using pot to treat some of the countries trickiest and most common maladies is hooey.
But pot business owners and advocates told ThinkProgress the attorney general’s buzzworthy move is all talk and no substance.
“Honestly I’m not that concerned about it,” said Terry Blevins, a former law enforcement officer who now runs an armored car service for medicinal cannabis firms. “My phone’s blowing up, everybody’s texting me ‘WTF.’” Still, he said he feels just as confident about the safety and prospects of his business today as he did Thursday morning.
“You’d have people rioting in the streets.”
The only thing that would panic him, Belvins said, is if Congress fails to renew restrictions on how Sessions’ agency can spend its money. Every DOJ spending package for the past four years has included language — backed by Reps. Dana Rohrabacher (R-CA), Earl Blumenauer (D-OR), and others — barring federal law enforcement from using its funds to go after medical marijuana firms. Congress has yet to pass a continuing resolution on government spending through next fall, but the representatives are confident the bill that eventually passes will include their restrictions.
“I’ve been on federal task forces before, I’ve worked with the feds, and I understand that budget really drives a lot of these enforcement efforts,” Blevins said. So long as the Rohrabacher-Blumenauer language survives, even a federal prosecutor who wants to heed Sessions’ call for a crackdown would be handcuffed by budget realities.
“The falsity is believing that with one swoop of a pen you’re going to stop a charging dragon.”
Blevins’ colleague Todd Kleperis, who runs a similar firm but wants to work with recreational pot firms as well as medical ones, would seem to be in greater danger. But Kleperis was if anything even more sanguine than his friend.
“The Sessions thing is all bluster, to my mind. You can’t pull this thing back,” Kleperis said, pointing to the sheer size of the money being made – and taxes being assessed – on legal pot. “The falsity is believing that with one swoop of a pen you’re going to stop a charging dragon that’s building toward $20 billion, $40 billion, $50 billion a year. You’d have people rioting in the streets.”
It’s a little harder to feel so steady about Thursday’s changes, however, if you’re coming into the business from one of the communities most harshly affected by the nation’s half-century-long war on drugs.
“There’s a lot of optimism when you talk about the mainstream industry and legalization. For us, we have to remember that our members specifically and the black and brown communities, they don’t have that privilege of being comfortable or optimistic even,” Minority Cannabis Business Association (MCBA) President Shanita Penny said in an interview.
State rules barring felons from the industry combine with the drug war’s racial disparities to effectively stonewall many black and brown entrepreneurs from the most profitable seats at the legal-pot table. Racial wealth disparities nationwide make it hard to get set up as a funder or license-holder for even those who managed to avoid the reefer madness dragnet. But as with other industries, the front-line blue-collar workers — the people most likely to be on the blunt end of a potential drug raid engineered by a prosecutor who shares Sessions’ old-timey zeal — are more likely to come from historically traumatized communities.
“That’s who’s gonna be the low-hanging fruit, most vulnerable and accessible,” Penny said. “You hope that cannabis companies are paying a fair wage, but just like any other industy you’ve got owners who make the big bucks and it doesn’t always trickle down. So you’ve now got people who’ve put their freedom and future in jeopardy to make this guy rich, and when there’s some compliance issue they’re the ones on the line, the first to be exposed.”
Market researchers who look at the cannabis industry as whole seem confident that both business owners like Kleperis and Blevins and investor-class funders are right to be undeterred by Thursday’s memo.
“It’s not going to affect how much money gets made,” ArcView CEO Troy Dayton told ThinkProgress, just who shows up to make it. Anyone who’s already invested in the industry knows the risks associated with a state-legal, federally-criminal enterprise. Step back now, Dayton said, and you’ll be immediately replaced by somebody else with dollar signs in their eyes.
“No matter what the federal government does, there’s going to be a broad line of people willing to get licenses to sell cannabis. And regardless of what the federal government does there’s going to be a very long line of consumers standing outside of those stores looking to buy cannabis,” Dayton said. “Jeff Sessions has been saber-rattling since day one, and this is just an extension of that saber-rattling.”
“It’s harmful to everybody that we have more questions today than we had yesterday.”
Since U.S. Attorneys have never been barred from going after pot firms if they think it’s merited, even under the advice Sessions tore up Thursday, the new rule is almost entirely symbolic.
But these signals from Washington still matter on the local level, Marijuana Policy Project Legislative Counsel Chris Lindsey said, and the flag Sessions is waving injects harmful uncertainty into cannabis markets.
“This is a big shift in policy and I think we have more questions than answers right now,” Lindsey said. “Some may get hope from that. But having been on the business end of federal law enforcement before, I think it’s harmful to everybody that we have more questions today than we had yesterday.”
Lindsey knows better than most how this kind of thing can go sideways. He helped launch Montana’s medical marijuana program and later found himself caught up in a wave of Drug Enforcement Agency raids initiated by the U.S. Attorney’s office there. He eventually pleaded guilty to a felony drug charge, avoiding prison when a judge rejected the prosecutor’s sentencing recommendations.
Individual U.S. Attorneys and DEA investigators use cases like those to send a message, Lindsey said. Sessions is encouraging them to do more of that.
“So what would be the message here? New memo, a month goes by, who’s the DEA going to raid?” he said. “Is it going to be the guys who invested millions of dollars into their licenses and facilities, everything is tested and labeled, 70 percent of local residents think it’s a good thing? Is that where DEA wants to score points?”
If federal cops do decide to start sending messages, the MCBA’s Penny said, the whole industry will have to stand up on behalf of the men and women who get caught in the middle.
“I’m in agreement that there wasn’t much of a change from Wednesday to Thursday,” she said. “We’re making the same ask as we did on Wednesday: That if something happens, that we as an industry will all stand behind these businesses, these patients, and these communities.”
A “stupid mindset from the 1950s”
The politics of legal pot have grown lopsided in the past few years. Two-thirds of the country now supports it — including a majority of Republicans.
“If the Trump administration is looking for a way to become less popular, going after cannabis would be a really great way to do that,” ArcView’s Dayton said.
Lawmakers invoked those same political winds on a media call late Thursday. Sessions’ attack not only helps the case to renew the Rohrabacher-Blumenauer language firms like Blevins’ rely on, the members said, but it also nudges the whip count on broader and more permanent protections in a positive direction.
“This is obviously a troubling development…but it doesn’t radically change what we’re trying to do,” said Blumenauer, the Oregon Democrat. “We have support in both parties to do this, and this puts a spotlight on it.”
Rohrabacher, Blumenauer’s most prominent Republican ally on cannabis protections, predicted Sessions’ move “will actually serve our purposes in the sense that it will mobilize us, and mobilize people around the country who have taken [the DOJ budget constraints] for granted.”
Rohrabacher also predicted Sessions’ move will place huge pressure on Trump. Hours after the White House said Trump supports the AG’s move, Rohrabacher said he expects the president to honor his repeated campaign promise to leave legalization up to the states.
“What we have got to do is hold his feet to the fire, get the message to him: We know that you promised this, your attorney general is now trying to take things in the opposite direction, are you or are you not going to abide by the campaign pledges you made?” Rohrabacher said. “And I have every confidence that if we do that he will uphold [his] commitment during the election.”
None of the representatives reported hearing from formerly opposed colleagues whose minds have changed since Sessions rolled back the old guidance. Pressed for concrete evidence that the memo is helping them add votes, Blumenauer pointed to a Thursday statement from Sen. Jean Shaheen (D-NH) pledging to“ensure that resources are devoted to opioid response efforts, rather than this foolish policy.”
“Senator Shaheen, who has never been involved with this issue with us before to the best of my knowledge, tweeted out today support for the protections we have in law,” Blumenauer said. “I have great respect for her, but this is new. She will be an important, valuable voice, and just one of many that will be added.” The next morning, Rep. Rod Blum (R-IA) tweeted that he was signing on to one of the group’s bills specifically because of Sessions’ action.
Rohrabacher hadn’t yet gotten vote pledges from any newly-energized Republican colleagues Thursday evening, but said he expects to as the holiday season fog fades. He, too, is confident that Sessions has overplayed a bad hand.
“We’re talking about senior citizens who could use help with their arthritis, veterans coming back, people addicted to opioids, for God’s sake, by doctors who have not been given the opportunity to offer some kind of prescription based on cannabis,” the California Republican said.
“People care about other people. When they see the impact of this stupid mindset from the 1950s and early ‘60s that’s what Jeff is representing…it’s going to energize all of these forces.”