Since last Tuesday, we have seen a deluge of stories asking what federal pot policy is going to look like under President-Elect Trump. NBC, the Washington Post, CBS, and many others have weighed in. The short answer, so far, is that nobody knows. Trump himself has made statements on every side of this issue, much as he has on issues broadly. In the past, he has made arguments in favor of drug legalization. During the campaign, he bounced between positions where he was positive on medical marijuana, to saying that it was all a states’ rights issue, to saying that legal marijuana has caused a lot of problems in Colorado.
So Trump is, to some extent, a wildcard on cannabis. After meeting with President Obama in the White House, Trump came away thinking that there actually were some good parts of Obamacare that he wanted to keep, which is different from his campaign trail calls for its total repeal. Many say Trump often takes positions based on the last person to speak to him and the people that he has surrounded himself with to date are not legalization warriors in any sense.
The most important appointment President Trump will be making is the Attorney General, who is the head of the Department of Justice, the agency that enforces and prosecutes federal crime, including federal drug laws. The Cole Memo, which sets out the current federal policy of only enforcing federal criminal laws against cannabis in egregious circumstances, was issued by the Department of Justice and can be withdrawn by the Department of Justice. The status of the Cole Memo is the main battle line we are talking about right now. If Hillary Clinton had been elected, everyone assumes the Cole Memo would have remained in effect, and the main question would have been whether banking would be easier, or if federal tax policy would be less punitive toward marijuana businesses. With Trump’s election, safety from federal enforcement is the paramount concern.
So, let’s take a look at the names floated for Attorney General so far: Chris Christie, Rudy Giuliani, Jeff Sessions, and Pam Bondi.
Christie: Chris Christie is probably the most ardent opponent of marijuana legalization on the national stage. He has stated in very clear terms that he would enforce federal laws even in states that have fully legalized marijuana. The only time he has backed down on the issue was in September, when he signed a New Jersey bill adding PTSD to the list of ailments for which marijuana can be recommended. Otherwise, Christie has shown a keen interest in cracking down on marijuana. Christie’s chances of becoming Attorney General, however, are hampered by the “Bridgegate” scandal, and that he is now believed to have fallen out of Trump’s inner circle. Christie as attorney general is a scary proposition for anyone in the cannabis industry, but that is looking less likely.
Giuliani: During his 2008 campaign for president, Giuliani made statements that were as strongly anti-marijuana as Christie’s recent statements. He has made fewer public statements on it in recent years, but he is generally assumed to still be a drug warrior and strongly anti-cannabis. But just this morning, Giuliani said that he is not in the running for the Attorney General position and there are rumors now that he may be named as Secretary of State.
Sessions: Jeff Sessions has been a drug warrior for a long time. Among his other choice quotes on the issue, he once said that “good people don’t smoke marijuana.” He attacked President Obama after the President said that alcohol was likely more harmful than marijuana. Throughout his career he has not shown any movement on the issue, even toward medical marijuana.
Bondi: Pam Bondi is the Florida Attorney General who ran into scandal for accepting a $25,000 campaign donation from the Trump Foundation while Florida was considering joining a lawsuit against Trump University, which she eventually opted not to join. On the marijuana question, Bondi was actively against medical marijuana legalization in Florida, but she did not fight to keep the 2016 ballot initiative off the ballot. That acquiescence, however, was based more on an acceptance that there was no legal way to challenge it as opposed to a belief change on marijuana itself. Still, it is hard to imagine a state official feeling comfortable with federal law enforcement going after marijuana businesses and users in a state that just passed medical marijuana with a 70% plus majority.
Other Considerations: Even if Trump appoints an anti-marijuana zealot to the Attorney General post, it isn’t clear that will lead to major changes in federal cannabis policies. Public approval for legalizing marijuana (especially medical cannabis) is solidifying and growing. Marijuana laws were approved in eight out of the nine states on which it was on the ballot, including heavily republican states. See Marijuana Election Overview. A majority of the people in the United States now live in places that have decriminalized or legalized medical or recreational marijuana. If Trump’s Department of Justice were to start going after marijuana businesses in legal states, the backlash would likely be swift and furious, and it would threaten to overwhelm the rest of his agenda.
Further, Congress still has a role here. In the past few federal spending bills, Congress has ruled that the Department of Justice could not use federal money to interfere with state marijuana laws. The 9th Circuit has ruled that this budget rider prohibits the Department of Justice from spending money on cannabis prosecutions against defendants fully compliant with their state’s medical cannabis laws. This budget rider does not protect recreational cannabis businesses, but there is an added complication where Washington and Colorado have at least partially merged their medical and recreational marijuana programs. Even if the Department of Justice wants to crack down on marijuana businesses, it’s not clear it has the legal right to do so.
At this point, there are no clear answers. No matter what happens, it is vital that the legalization community stay involved and stay loud. Public opinion does matter, and public officials don’t like their agendas to be dragged down by single issues. Organized cannabis lobbying is more important than ever, so keep letting your elected officials know where you stand on cannabis.