Trump taps Jeff Sessions for Attorney General nominee: what does this mean for legal marijuana?

The cannabis community has been eagerly waiting to learn whom Donald Trump would nominate as the nation’s top law enforcement officer, and it appears we have our answer: Alabama Senator Jeff Sessions. So what does this mean for legal marijuana?

Let’s first start with a quick overview of the current federal approach to marijuana in legal states. In 2013, Deputy Attorney General James Cole issued a memorandum to all United States Attorneys related to marijuana enforcement. Cole recognized that the Department of Justice had “limited investigative and prosecutorial resources,” and accordingly the Department was focusing its efforts on enforcement priorities that were “particularly important” to the federal government:

• Preventing the distribution of marijuana to minors;
• Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
• Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
• Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
• Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
• Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
• Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
• Preventing marijuana possession or use on federal property.

In other words, if a state’s regulatory system does not implicate these enforcement priorities, and if marijuana enterprises are compliant with state law, then the Department of Justice would exercise its discretion and allow those enterprises to operate. Importantly, this policy is not set in stone, and is subject to review by subsequent administrations. Which brings us now to Donald Trump and his nominee for Attorney General, Jeff Sessions.

In interviews throughout the election season, Donald Trump was actually fairly consistent in his open-minded approach to legal marijuana. He told the Washington Post that “In terms of marijuana and legalization, I think that should be a state issue, state-by-state[.]” He also told Bill O’Reilly that he was in favor of medical marijuana “a hundred percent,” even though he thought that diversion into other markets was a problem (so did James Cole).

Jeff Sessions, however, has not been as open when it comes to legal marijuana. A former Attorney General for the State of Alabama, he famously joked that he thought the Klu Klux Klan was fine “until [he] found out they smoked pot.” He was nominated for a federal judgeship in 1986, but his nomination was rejected by the Senate Judiciary Committee (which was controlled by Republicans at the time, and is now the same Committee that Sessions chairs in the Senate).

In an exchange with Michele Leonhart during a Senate hearing in 2010, Sessions said the following:

“I’m a big fan of the DEA[.] * * * These legalization efforts sound good to people[.] They say, ‘We could just end the problem of drugs if we could just make it legal.’ But any country that’s tried that, Alaska and other places have tried it, have failed. It does not work[.] We need people who are willing to say that. Are you willing to say that?”

Sessions’ attitude appears to conflict with the attitude of the President-Elect who nominated him, and perhaps he will adopt the President-Elect’s federalist approach to legal marijuana. But given Sessions’ prior comments, the best case scenario for the legal marijuana industry may be to maintain the current status quo. For instance, with Sessions as the nation’s top law enforcement officer, it is probably unrealistic to expect that the DEA will revisit its decision not to reschedule marijuana.

Hopefully Americans will get insight into how a Sessions-led Department of Justice will treat legal marijuana during the confirmation process. Until that happens, it looks like the waiting game continues for legal marijuana entrepreneurs.