Dear Pot Lawyer,
Jeff Sessions finally ripped up the Cole Memo. Should we be scared?
We should be paying attention, but no, we shouldn’t be scared. For nearly all of my law firm’s clients, from Seattle to San Diego, it’s been business as usual. This means growing weed, processing it, and selling it to other grown-ups. No one clammed up; no one ran for the hills. In this sense, it’s very much like January 2017 when Sessions was appointed as attorney general. In fact, the psychic impact is probably smaller.
For anyone who tuned out completely last week (or for the past few years), I should explain that the Cole Memorandum is an Obama-era guidance document that advised US attorneys not to spend federal resources chasing state-legal weed, so long as those states were acting responsibly. The Cole Memo stayed in place for nearly four and a half years, until Sessions finally rescinded it last week. In his rescission, Sessions didn’t tell US attorneys they ought to prosecute cannabis businesses, which would have been politically unfeasible. Instead, he left it wide open.
To consider the relative risk faced by pot businesses today, please return to 2011 with me for a minute. That summer, a medical cannabis dispensary owner walked into my law firm because his landlord was going bankrupt and the building was at risk. Back then, there were few states with medical cannabis programs, no states with adult-use weed, no Cole Memo, and nationwide polling for cannabis was poor. Here in Oregon, dispensaries weren’t even contemplated under the rules: People were just doing it. As far as federal enforcement goes, the 2011 guy was a sitting duck.
Of course, nothing happened. Over the next six years, the entire West Coast (including Nevada) legalized adult-use cannabis, some East Coast states went all in, and even conservative states like my native North Dakota approved medical production. At this point, I believe Sessions is tripping: If he makes it through 2018, the best he will see is sporadic enforcement by likeminded subordinate lawyers. His actions may even have the unintended effect of galvanizing Congress to legislatively protect cannabis programs faster.
As far as isolating risk by region, that comes down to who the local US attorney is and what their views are on things like weed and wasting public resources in career-crippling ways. Here in Oregon, the big boss is US Attorney Billy Williams, who has expressed concern about the black market and overproduction, but has promised to be “methodical and thoughtful.” That’s not a great statement, but it isn’t terrible, either.
Personally, I plan to ignore the overwrought reporting and keep on plugging for prohibition to end. If a deal or two falls through, this wasn’t the right industry for those particular individuals. Most cannabis business owners, however, have an enormous capacity for risk, like the 2011 guy, or the countless California businesses that have battled US attorneys for the past 20 years in the teeth of raids and court dates. Sessions’ gambit will not stop anything.
Now everyone, back to work.
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