WASHINGTON — The Justice Department’s No. 2 official, James Cole, mounted a vigorous defense last week of the Obama administration’s decision not to sue states that have legalized marijuana for recreational purposes, telling senators “there are no perfect solutions here.”
Cole, the deputy attorney general, said at a hearing of the Senate Judiciary Committee that federal prosecutors would enter into a “trust but verify” relationship with Colorado and Washington, whose voters last year approved ballot initiatives to legalize marijuana for recreational purposes.
Cole made clear the new hands-off approach to marijuana law enforcement would also extend to the 21 states — including California — and the District of Columbia, all of which have legalized marijuana for medicinal purposes.
At the same time, Cole said, prosecutors would not hesitate to pursue cases where federal priorities are implicated. Those include:
• Preventing marijuana distribution to minors.
• Blocking diversion of marijuana from states where it has legal status to states where it does not.
• Making sure the legal marijuana structure does not serve the interests of organized crime gangs, especially violent ones that use firearms.
• Halting marijuana cultivation on public lands and a rise in “drugged driving.”
States must implement strict regulatory systems to “fully protect against the public health and safety harms” outlined in the list of federal marijuana enforcement priorities, Cole said.
“We are not giving immunity; we are not giving a free pass; we are not abdicating our responsibilities,” Cole insisted under questioning from Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt.
“When we see somebody who is marketing marijuana in a way that’s going to be attractive to minors, we’re going to go after them,” he said. “If we see somebody who is growing and cultivating marijuana so they can import it or export it out of state, we’re going to go after them. If they’re involved in drug cartels and illegal enterprises, we’re going to go after them.”
Cole said the Justice Department feared that lawsuits against states legalizing marijuana fully or in part might have backfired, leading to a situation in which marijuana is freely distributed with no regulatory system in place to guarantee, for instance, that violent gangs don’t profit from it.
Under questioning from Sen. Charles Grassley, R-Iowa, the committee’s senior Republican, Cole acknowledged “there are no perfect solutions here. ... If we just went after their regulatory scheme, instead of just having a bad one, they’d have no regulatory scheme.”
By engaging the states in a “trust but verify” relationship with Washington, “we’re hoping (efforts by states in enforcing their) own state laws will have a better effect than having no effort whatsoever.”
Grassley denounced the Justice Department position as only the latest instance of the Obama administration declining to enforce laws it views as “inconvenient.”
“Prosecutorial discretion is one thing, but giving the green light to an entire industry predicated on breaking federal law is another,” Grassley said. “These policies are another example of the administration ignoring laws that it ... just doesn’t like. Immigration law, Obamacare deadlines — the list is long, and it hardly needs repeating.”
Cole is the author of a 2011 memo that signaled a crackdown on medical marijuana dispensaries, particularly those in California that had been operating on the basis of a previous 2009 Justice Department directive that appeared to green-light medical marijuana businesses in compliance with state law.
In his most recent instructions to prosecutors, dated Aug. 29, Cole appeared to go back to the original 2009 memo in stating that the Justice Department must use its “limited investigative and prosecutorial resources” to go after major drug traffickers, rather than pursue marijuana cultivators and dispensaries acting under state law.