When President Trump announced that then-U.S. Senator Jeff Sessions (R-Ala.) would head the U.S. Department of Justice, cannabis business leaders were rightfully concerned. After all, Sessions has been notoriously vocal about opposing cannabis in any form.
“Good people don’t smoke marijuana,” the Senator said at an April 2016 hearing. “We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized,” he added. “It’s in fact a very real danger.” The list of colorful quotes goes on and on.
Today, Sessions is out of the Trump Administration, resigning at the president’s request after months of speculation that his tenure would be up shortly after the midterm elections. Many factors led to this, but it is unlikely that Sessions’s position on cannabis was one of them.
To understand why, let’s review Sessions’s record. Given his hard line on cannabis, many expected official DOJ policy to adopt and enforce Sessions’s anti-marijuana views. In one respect, that has been the case. In early 2018, in a major blow to the cannabis sector and its advocates, Sessions rescinded a 2013 DOJ memo issued by Obama-era Deputy Attorney General James Cole that directed federal prosecutors not to enforce the federal cannabis ban in states that had legalized cannabis use and had implemented sufficient regulations to control it.
By rescinding the Cole memo, Sessions threatened the Obama Administration’s explicit hands-off approach to cannabis enforcement in jurisdictions where it was legal for medicine or recreation – a list that now includes 31 states plus the District of Columbia. But outside of that one action — despite rumors of a shadowy Marijuana Policy Coordination Committee charged with waging a “war on weed” — public federal anti-cannabis activity has been difficult to detect.
Rescinding the Cole memo did not lead to the worst fears of a full-scale prohibition or DOJ ramp-up of federal enforcement. But Sessions’s move did give cannabis opponents something to celebrate: a legal cannabis industry facing greater uncertainty.
For example, if national banks and credit card companies were nervous about entering the sector before, losing the Cole memo made it untouchable – a state of play that is already holding back the greatest potential of the sector. As I discussed in Forbes in August, the industry would be tremendously boosted by the safety, security, and transparency that comes from working with large financial institutions if it were permitted. But major financial institutions will not touch this sector until it is declared legal to do so.
There are glimmers of hope, however, now that Sessions has left office. For all of his anti-cannabis bluster, it seems like his former boss doesn’t share his opinion, and that could lead to new legal protections for the industry.
For example, in June, U.S. Sens. Cory Gardner (R-Colo.) and Elizabeth Warren (D-Mass.) introduced the STATES Act, which would amend the federal Controlled Substances Act to exempt state-legal cannabis activities from its provisions and allow banks to work with legal cannabis businesses. Asked at a press conference whether he supports the Gardner-Warren bill, President Trump responded, “I probably will end up supporting that, yes.”
Then, in October, U.S. Rep. Dana Rohrabacher (R-Calif.) told Fox Business that he had been “talking to people inside the White House” about ending the longstanding prohibition on cannabis. According to Rohrabacher, “the president intends to keep his campaign promise” to protect states that have legalized cannabis in some form from federal interference. While these are hardly definitive indications that Trump will support legal cannabis in the end, they may be signs that progress might be on the horizon.
If this is the case, a logical first step for the incoming Attorney General would be to reinstate the Cole memo. Absent legislation being passed today to federally legalize cannabis or allow national banks to serve legal cannabis businesses, this will help remove at least some uncertainty about how the federal government will treat the sector in states where it is legal, regulated and safe.