The Cole Memo: Why It Mattered Then More Than Now
By August of 2013, not only were regulated and legal medical marijuana programs operational in a spattering of states from coast to coast, but Colorado and Washington had become the first two states to pass adult recreational use cannabis laws blazing the trail for the movement we are witnessing today.
The cannabis plant was at the time, and still is, completely illegal at the federal level although now the government is considering any cannabis plant with less than 0.3% THC as “hemp” which has been removed from the Controlled Substances Act.
Although raids were common in grey markets like San Diego and Los Angeles in those days, they rarely involved federal charges and would be handled in state more often than not.
The truth of the matter was that federal law enforcement, regardless of its stance on legal weed, simply did not have the appetite or the resources to pursue mom and pop pot shops from Poway to Poughkeepsie.
This point was proven on August 29th of 2013 when Deputy Attorney General James Cole released an official U.S. Department of Justice Memorandum for All United States Attorneys with a subject line of “Guidance Regarding Marijuana Enforcement”.
Although the Cole Memo made some waves at the time of its release, the fact is that it was the second such proclamation from the DOJ just since President Obama had taken office.
In 2009 the Deputy AG at the time was a man named David Ogden who released his own less publicized and rarely cited memorandum stating that U.S. attorneys should “not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing laws providing for the medical use of marijuana”.
The Cole Memo went a step further, defining a very specific set of guidelines laying out when federal prosecutors and law enforcement should prioritize cannabis related cases:
- Preventing the distribution of marijuana to minors
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property
We think that most sensible cannabis advocates would agree that while nobody deserves to go to jail or prison for a plant, many of these bullet points above really do make sense in order to maintain a safe society.
Really, there are only two points on their list that we take issue with.
First is the “drugged driving” implication considering that empirical evidence from cannabis-friendly states has shown an overall reduction in traffic fatalities post-legalization.
Study after study shows cannabis users to generally be more cautious drivers and as more people replace booze with a bong we will absolutely see our roads get safer.
The second point that chapped our hide a bit was the final point regarding cannabis possession or use on federal property. While you may be picturing the White House lawn, that barely stopped Snoop, but our concern is more with National Parks and monuments.
We camp in these areas and though we do our best to be discrete, nobody wants to catch a charge from the Feds for smoking a J of some tree in Joshua Tree.
Upon the issuance of the Cole Memo in August 2013, almost all ongoing cannabis-related federal prosecutions went up in smoke unless they ticked one or more of the greenlit requirements listed in the memorandum.
NEW AG, WHO DIS
When Donald Trump defied all odds in 2016 and ascended to the highest office in the land, not only were we finally convinced that we are all living in some far-future computer simulation but we were also presented with the nightmare prospect of having the festering little weed-hating Senator from Alabama, Jeffrey Beauregard Sessions III, as our new top cop in America as the Attorney General.
Sessions, you may recall, has had some choice words about cannabis and those in favor of it over the years:
When asked about his thoughts on the KKK, he once famously replied that he thought that they were “OK until I found out they smoked pot.”
Then the pint-sized disgruntled elf of a senator once shook his wee fist and declared, “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.”
And, of course, who could forget the time he took a miniature shit on millions of people worldwide when he said, “Good people don’t smoke marijuana”?
But it’s this last comment that many felt was foreshadowing for what he intended to do with his newfound power, “I think one of [Obama’s] great failures, it’s obvious to me, is his lax treatment in comments on marijuana… It reverses 20 years almost of hostility to drugs that began really when Nancy Reagan started ‘Just Say No.'”
We could type 2000 words right here about how out of touch that comment is and how counterproductive and absolutely destructive the shortsighted and racially motivated “War on Drugs” has been. We’ll just sum it up with words from the late, great Bill Hicks who once said, “You know what that implies? There’s a war being fought, and the people on drugs are winning it.”
But Sessions’ harsh stance on cannabis over the years had many worried that he may ignore or rescind the mandate put forth by the Cole Memo and in January of 2018 he did just that.
Fortunately for cannabis and actual justice fans across the country, by January of 2018 Jeff Sessions had been completely neutered of any political power due in large part to his undisclosed involvement with Russian officials while acting on behalf of the Trump campaign in 2015-16.
These secretive meetings and the subsequent lies he told under oath to lawmakers should have been enough to not only disqualify him from his AG nomination, but should have landed him in handcuffs.
Instead, partisan Republicans waved their boy through to the Department of Justice where career cops quickly convinced the bouncy little man that he needed to recuse himself from the ongoing probe into Russian election interference.
His compliance with that suggestion sent the president into a yearlong Twitter-rage against his own Attorney General, chopping down any splinters of credibility that the embattled twerp had left, 280 characters at a time.
So when Sessions finally decided to shred the Cole Memo, it went over like a silent fart – everyone knew something foul had occurred, but it was long gone before it became a real problem.
You see, Sessions was fired by Trump last November as the heat continued to rise around the loose-lipped prez regarding his many questionable connections to unsavory oligarchs.
NEW AG … AGAIN … NOW WHO?
After the turn of the new year into 2019 the confirmation process began for the man tapped by Trump to replace Sessions, a former U.S. Attorney General under the first President Bush by the name of William Barr.
It was during Barr’s Senate confirmation hearings that two up-and-coming politicos in the Democratic Party – Cory Booker of New Jersey and Kamala Harris of California – decided to use the brief time given to them to grill the potential new AG, bringing up cannabis reform in order to get Barr’s take on the topic.
On camera for the world to see, Mr. Barr was asked bluntly by Booker how he would treat the 33 states who have legalized the medical use of cannabis and the 10 that have legalized the adult recreational use of the plant should he be given the job as head of the DOJ.
“I’m not going to go after companies that have relied on Cole Memorandum,” Barr replied to Booker’s inquiry regarding federal intervention.
When she got her own turn on the mic, Kamala Harris asked Barr, “Are you intending to use the limited federal resources at your disposal to enforce federal marijuana laws in the states that have legalized marijuana?”
Barr replied, “To the extent that people are complying with the state laws in distribution and production and so forth, we’re not going to go after that.”
To be clear, Barr is no fan of cannabis personally and he really doesn’t even agree with the wave of reform that we are experiencing today nationwide. But, he is a stickler for the rules and the law of the land continues to get rewritten in favor of legal weed and he seems to understand his role in upholding those democratically passed laws.
But even hearing it with our own ears and seeing him say it on TV with our own eyes is less than satisfying in a day and age where his predecessor straight up lied under oath – twice – to the same committee and still walked away with the job of busting liars for a living for nearly two full years.
But recently, Barr was made to submit written answers to another Senate inquiry and once again cannabis was front and center. Barr, to his credit, stood by his verbal testimony, writing in response, “As discussed at my hearing, I do not intend to go after parties who have complied with state law in reliance on the Cole Memorandum.”
However, acknowledging that the Cole Memo or language similar to it no longer exists thanks to his predecessor, Barr would not commit to reinstating it or drafting his own version, saying, “I have not closely considered or determined whether further administrative guidance would be appropriate following the Cole Memorandum and the January 2018 memorandum from Attorney General Sessions, or what such guidance might look like.” But, he has admitted that the current wedge that exists between state and federal cannabis laws in “untenable”.
So, that is where we stand.
The Cole Memo, though flawed, undoubtedly protected a countless number of people who were dabbling in semi-legal weed and may have been caught up in more serious charges otherwise.
If Barr, as the Attorney General, ordered the closure of all state-sanctioned cannabis shops tomorrow, the laughter from D.C. to dispensaries would be heard from deep space. They just don’t have the guts and even if they did they don’t have the funds.
It all comes down to intent and right now it appears the Feds intend to give us enough rope to either tie up all of our loose ends, or hang ourselves.