On November 8, 2016, Donald Trump defeated Hillary Clinton in the US Presidential election. That same day, voters in California, Nevada, Massachusetts, and Maine legalized marijuana for recreational use, and voters in Florida, Arkansas, North Dakota, and Montana approved medical marijuana initiatives. For supporters of marijuana, Election Day was bittersweet; the overall success of marijuana ballot initiatives was undercut by a potentially hostile new administration.
Now that we have a year’s worth of Trump administration comments and action on cannabis, it’s a good time for us to access where things are with this administration.
1. Trump Changed His Tune Before Becoming President
Donald Trump has been a wildcard on marijuana, having made statements on every side of the issue. In 1990, Trump told the Sarasota Herald-Tribune that US drug enforcement efforts were “a joke” and advocated for legalizing all drugs to “take the profit away from these drug czars.” During his campaign, Trump responded to a question about Colorado cannabis legalization as follows:
“I say it’s bad. Medical marijuana is another thing, but I think [recreational marijuana] it’s bad. And I feel strongly about that. If they vote for it, they vote for it. But they’ve got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent.”
2. Trump Has Barely Discussed Cannabis
Trump appears to have publicly commented on cannabis but once since he became president when sports journalist Jim Gray asked him whether NFL players should be allowed to use medical cannabis and Trump replied by saying he had “no opinion on it. They’re going to have to take a look at that. They’re going to talk with the league, they’re going to be talking to, obviously, government officials wherever it may be.” This Trump statement is hardly illuminating regarding his current position on cannabis.
3. Jeff Sessions Hates Cannabis
Trump appointed Jeff Sessions as Attorney General. Sessions has a long history of being vehemently anti-marijuana. As a Senator, Sessions often criticised President Obama’s “hands-off” approach to marijuana and once stated that “we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger.” He also went so far as to say that “good people don’t smoke marijuana.” Sessions’ hatred for cannabis has not cooled since taking over as Attorney General and he made the following statement earlier this year:
“I reject the idea that America will be a better place if marijuana is sold in every corner store. And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana—so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.”
4. Spicer Warned Of A Crackdown On Weed That Hasn’t Happened
In February, then Press Secretary Sean Spicer made comments that sent tremors through the legal cannabis industry when he predicted “greater enforcement” of the Controlled Substances Act in recreational states. Spicer stated, “[t]he president understands the pain and suffering that many people go through who are facing, especially terminal diseases, and the comfort that some of these drugs, including medical marijuana, can bring to them,” Spicer went on to tell reporters that states’ allowance of marijuana for recreational purposes “ is something the Department of Justice, I think, will be further looking into.” Fortunately, this prediction has not come true.
5. Sessions Is Evaluating The Cole Memo
At his confirmation hearing, Attorney General Sessions said that he intended to consider the viability of the Cole Memo:
“The Department of Justice under Lynch and Holder set forth some policies that they thought were appropriate to define what cases should be prosecuted in states that have legalized, at least in some fashion marijuana, some parts of marijuana…. But, fundamentally the criticism I think was legitimate is that [the policies] may not have been followed. Using good judgment about how to handle these cases will be a responsibility of mine.”
Sessions was critical of the Cole Memo during his confirmation but he has not yet rescinded the memo or its underlying policies. In March, Sessions reportedly reassured some GOP senators that he will not be moving away from the Cole Memo and the Obama-era deference to state-legal cannabis programs. But the Huffington Post uncovered a July 24, 2017, letter Sessions sent to Washington State Governor Jay Inslee that was harshly (and inaccurately) critical of Washington State’s marijuana regulatory system. Earlier this week, Sessions confirmed that his office is continuing to follow the Cole Memo with regards to state-legal marijuana.
Trump as president so far seems not to care much one way or the other about cannabis legalization. In the meantime, cannabis legalization continues to move forward.
Daniel Shortt is an attorney at Harris Bricken, a law firm with lawyers in Seattle, Portland, Los Angeles, San Francisco, Barcelona, and Beijing. This story was originally published on the Canna Law Blog.