Donald Trump, Marijuana

ICYMI: Trump Is Marijuana's Wildcard

At this point, there are no clear answers on how the Trump administration will deal with cannabis.

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marijuana gavelSince 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. 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 people are saying that he often takes positions based on the last person to make a semi-compelling argument to him. And the people that he has surrounded himself with to date are not legalization warriors in any sense.

When it comes to cannabis, 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 crimes, including federal drug laws. The Cole Memo, which outlines the current federal policy of only enforcing the federal cannabis laws in egregious circumstances, was issued by the Department of Justice and can be withdrawn by the Department of Justice.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 questions we’d be asking right now would have been whether banking for cannabis businesses would be made easier or if federal tax policy would be less punitive toward marijuana businesses. With Trump’s election, safety from federal enforcement has become our paramount concern.

So, let’s take a look at the names floated for attorney general so far: Chris Christie, Rudy Giuliani, and Pam Bondi.

Christie: Chris Christie is one of the most ardent opponents of marijuana legalization on the national stage. He has stated in very clear terms that he would enforce federal marijuana 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 bad blood between him and Jared Kushner, Trump’s son-in-law (for having prosecuted Kushner’s father). Recent reports are that Christie has been pushed out of Trump’s inner circle. Christie as attorney general is a scary proposition, but it 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 a pot-hater.

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 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 change of belief 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.

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Other Considerations: Even if Trump appoints an anti-marijuana zealot to the attorney general post, it isn’t clear we will see a change in federal policy. Public approval of marijuana is starting to really solidify. Marijuana laws were approved in 8/9 states, including heavily Republican states. A majority of Americans now live in places that have decriminalized or legalized medical or recreational marijuana. If Trump’s Department of Justice started going after marijuana businesses in legal states, the backlash would 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 Ninth Circuit has ruled that this budget rider prohibits the Department of Justice from spending money on prosecutions if the defendants are fully compliant with state cannabis laws. This budget rider does not protect recreational cannabis businesses, which adds complications for Washington and Colorado, both of which 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 on how the Trump administration will deal with cannabis, but no matter what happens, it is vital that the legalization community stay involved and stay loud. Public opinion really 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.

Hilary Bricken bio photoHilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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