Jeff Sessions Is Fighting Legal Weed with a Weak Hand

Lester Black
Aug 8, 2017 · 5 min read

A shadow of doubt was cast across the legal weed industry when, in November of last year, President-elect Donald Trump nominated then-Senator Jeff Sessions to be his attorney general. Would the senator from Alabama attack legal weed and act on the same impulses that led him to say in congress that “good people don’t smoke marijuana”?

Jeff Sessions in 2004

After six months on the job and, most recently, a threatening letter sent to Washington Governor Jay Inslee, we have a pretty good answer to that question: Sessions still hates weed and wants to shut the legal cannabis industry down. This is very frightening — cannabis is illegal under federal law and Sessions, as the top law enforcement officer in America, has complete legal authority to attack the industry. But, look closely at how Sessions is attacking the industry and it quickly becomes apparent that Sessions is playing with a very weak hand.

In fact, in his latest attack — three letters sent to the governors of Washington, Colorado and Oregon — Sessions threatens the legal industry in a way that actually affirms the industry’s very right to exist in the first place. In his letter to Inslee, Sessions writes that Washington’s legal weed industry is “incompletely regulated” and claims that pot has been allowed to fall into the hands of minors and leak out of our state. He claims that the industry is in violation of the so-called “Cole Memo,” a document written by the Obama Administration that tells states that they can experiment with pot legalization provided they have strong regulations that accomplish a set of core principles.

So, by saying that Washington is violating the Cole Memo, even if he is only doing so to build a case to attack the industry, he is tacitly confirming that Washington can legalize pot if the state meets the Cole Memo’s requirements.

The Cole Memo is a non-binding document that Sessions has the authority to tear up at any time, and Sessions has attacked the memo in the past. So why doesn’t he just end legal weed by saying everyone growing, selling or consuming weed in Washington is breaking federal law? He doesn’t need to argue that the state’s weed industry isn’t regulated enough, he could simply file a federal lawsuit to shut down Washington’s pot market tomorrow.

He doesn’t outright attack legal weed because the majority of the political forces in the country are firmly against him, and he knows it.

Sessions’ reliance upon the Cole Memo should absolutely be seen as a concession in his war against pot. That’s not to say that Sessions is powerless — he is still attorney general and pot is still a schedule 1 controlled substance. But his reference to the Cole Memo shows how perilous he sees the fight ahead. The political forces against pot prohibition are too strong for him, and the repeated rebukes he’s suffered in his six months as attorney general demonstrate that.

In May, Sessions asked Congress — in a private letter that was later leaked to the press — for permission to spend federal money on investigating and prosecuting the medical cannabis industry. Congress declined to do so.

In July, a task force hand-picked by Sessions to study enforcement of federal cannabis law recommended that the DOJ keep the Cole Memo in place. Many observers thought this task force was a sham commission created to feed Sessions a reason to attack legal weed, but even his hand-picked committee couldn’t give this to him. Sessions tried to keep the recommendation secret but it was leaked to the press.

Now, faced with both the power to do what he wants and the understanding that he can’t, he is trying to argue that legal weed is improperly regulated and in violation of the Cole Memo’s rules. If he can make the case that, even by Obama’s standards, legal weed is a reckless experiment then maybe he can reverse his string of losses.

Legal Washington weed

So, how well is Washington playing by the rules? By most measures, Washington is upholding its part of the Cole Memo. There doesn’t appear to be an increase in the amount of underage pot use. There has been almost no evidence of organized crime profiting off it. It is almost certainly being exported to other states but probably on a very small scale; there has not been any evidence of weed grown legally in Washington being exported in large quantities to other states.

Sessions, however, uses a biased, and outdated report released in March of last year by a local branch of the Office of National Drug Control Policy (ONDCP) to claim that the industry is not sufficiently regulated. The ONDCP, an agency created during Ronald Reagan’s War on Drugs, has a legal obligation to oppose any efforts to legalize medical or recreational cannabis. It would be literally illegal for the ONDCP to argue that pot legalization is working, so they produced a scathing report filled with distorted facts and questionable logic. And the report’s data isn’t even current — the study looked at less than the first year of legalization, a time when state regulations and the market were still developing.

Inslee said the report was based on “incomplete and unreliable data.” Washington Attorney General Bob Ferguson went further, telling The Seattle Times that “Honestly, it’s hard to take him seriously if he relies on such outdated information.”

Sessions can try to use this discredited report to shut Washington’s industry down, but he isn’t likely to get very far. Congress will not support his war on pot. Lawyers in the Department of Justice, confronted with the overwhelming logic of regulated legal pot, will not willingly support him. American voters, a majority of whom support legalization, will not support him.

And the potential victims of Sessions’ War on Pot will not allow it. Attacking legal weed is not attacking marginalized citizens, the ones attacked by Clinton, Nixon, Reagan, and both Bush’s under previous wars on drugs. Attacking legal weed is attacking powerful millionaire executives with resumes that include stints at huge corporations, like Starbucks and Disney. It’s attacking a workforce 10,000-strong in our state alone. It’s attacking $400 million in tax revenue from a state budget that is already strained.

Sessions, with his slow and quiet southern drawl, has been outplayed.

Welcome to a place where words matter. On Medium, smart voices and original ideas take center stage - with no ads in sight. Watch
Follow all the topics you care about, and we’ll deliver the best stories for you to your homepage and inbox. Explore
Get unlimited access to the best stories on Medium — and support writers while you’re at it. Just $5/month. Upgrade