Former Top DOJ Official And Congressman Say Federal Marijuana Guidance May Expand State Protections Following Rescheduling Announcement

As expectations mount about updated federal guidance on marijuana enforcement priorities that could accompany a rescheduling move, the former U.S. deputy attorney general behind an earlier memo on prosecutorial discretion says “almost anything is possible” in terms of expanding its scope to provide more protections for state cannabis markets—including the possibility of sanctioning interstate commerce.

A Democratic congressman agrees, telling Marijuana Moment on Tuesday that he expects the Justice Department with “reissue and expand” the Obama-era guidance that generally formalized a policy of non-intervention with respect to state marijuana laws. The so-called Cole memo was rescinded under the Trump administration.

James Cole, the former DOJ official who authored that earlier guidance, spoke on Wednesday about federal cannabis policy issues—including the Drug Enforcement Administration’s (DEA) newly announced rescheduling determination—during an event organized by the National Cannabis Roundtable (NCR).

“It’s hard for me to speak for DOJ presently—but I think, obviously, you’ve got an enormous step forward with the decision to reschedule,” Cole told Marijuana Moment. “It shows an institutional softening of the position both at DOJ and even more significantly at DEA. It seems to me at this point that the memo I wrote seems to still have some lingering effect.”

“It’s always a good idea, every 10 years or so, to take a look at something and see if it needs to be tweaked and if it needs to be improved and what lessons are learned,” he said. “Knowing a lot of people at the Justice Department—these are very smart and very able administrators, and people who run the department really know what they’re doing. I think it’s probably likely they will consider the issue and determine whether or not any further guidance is necessary once the rule has taken effect.”

He added that it’s important that “everybody know where the federal government stands on prosecutions and what the guardrails are going to be.”

More broadly, Cole said that Congress should establish a regulatory framework for marijuana. But interim guidance could help mitigate confusion resulting from the existing federal-state cannabis policy disconnect.

The former deputy attorney general also said future guidance may take into account more contemporary concerns in the state marijuana industry such as restricting products that may appeal to youth. He also said federal prosecutions of the illicit market should be “stepped up both state-wise and federally, because to me the key to all of this is the maintenance of a legitimate and well-regulated business. That’s how you’re going to ensure public safety in this area.”

Meanwhile, during a press briefing on Tuesday that followed DEA’s rescheduling announcement, Congressional Cannabis Caucus founding co-chair Rep. Earl Blumenauer (D-OR) told Marijuana Moment that he’s “confident” the Justice Department will “reissue and expand” the Cole memo, though he hasn’t heard directly about the potential timing for such an action.

He and Rep. Barbara Lee (D-CA) led a letter to Attorney General Merrick Garland in March that addressed the issue, calling it “unacceptable” that DOJ has yet to reissue the marijuana guidance to discourage interference in state cannabis programs, leaving Americans in a “legal limbo” despite promises to update the policy.

During Tuesday’s briefing, Lee also took a question from Marijuana Moment about her views on DEA’s decision to move cannabis from Schedule I to Schedule III under the Controlled Substances Act (CSA).

While she previously said the incremental reform could set the country back on the path to federal legalization “another 50 years,” the congresswoman seemed to walk that position back on Tuesday, saying it will only set the movement back “if we don’t continue to fight for full descheduling and decriminalization.”

“We have to double our efforts—triple our efforts—right now for full descheduling, and that’s what I mean by that,” Lee said. “I don’t mean letting this just rest and move into Schedule III. We have to keep fighting hard and the next eight months I think will be, hopefully, very successful.”

It’s not exactly clear how long it will take for the DOJ’s marijuana rescheduling rule to be finalized. First it must receive initial approval from the White House Office of Management and Budget (OMB), after which point it will be published in the Federal Register and open for public comment. There’s also a distinct possibility that opponents may seek to challenge the rule in court or via an administrative hearing.

When the rescheduling decision is formally posted in the Federal Register, Cannabis Wire reported that it will be accompanied by a Justice Department Office of Legal Counsel (OLC) opinion that contests the idea that rescheduling would put the U.S. in violation of international treaty obligations, as some opponents have argued.

It will also defend the revised two-part scheduling review that the U.S. Department of Health and Human Services (HHS) relied on to make its Schedule III recommendation and clarify that DEA is obligated to defer to the health agency’s scientific findings, the outlet reported.

Meanwhile, Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) and a coalition of other Democratic senators are officially reintroduced a bill to federally legalize marijuana on Wednesday.

Schumer Suggests Marijuana Banking Could Still Be Attached To Aviation Bill, As GOP House And Senate Leaders Reaffirm Opposition

Photo courtesy of Philip Steffan.