By CHARLIE SAVAGE and JACK HEALY
WASHINGTON – The Trump administration on Thursday will free federal prosecutors to more aggressively enforce marijuana laws, effectively threatening to undermine the legalization movement that has spread to six states, most recently California.
The Justice Department is expected to rescind an Obama-era policy of discouraging federal prosecutors from bringing charges of marijuana-related crimes in states that had legalized sales of the drug.
It was not immediately clear whether the administration intends to carry out a federal crackdown on marijuana dispensaries, or is merely rattling its saber. The Associated Press first reported the announcement, and a government official familiar with the matter confirmed that the change would be announced later Thursday.
The move is likely to increase the confusion surrounding whether it is legal to sell, buy or possess marijuana in the United States. Federal law has long prohibited those activities, and in 2013, after voters in Colorado and Washington state voted to decriminalize marijuana for recreational use, the Justice Department deliberated about how to handle the resulting disconnect between state and federal law.
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Ultimately, the Obama administration decided not to sue such states, and the Justice Department issued a policy memo instructing federal prosecutors to de-prioritize marijuana-related prosecutions in those states – except in certain cases, such as when there were sales to children or gang-related activity.
That policy is known as the “Cole memo” after the then-deputy attorney general who issued it, James Cole. It is that document that is expected to be rescinded Thursday.
The federal government’s hands-off approach allowed a new industry to flourish in states that had decided to legalize and regulate marijuana use and sales for recreational and medical use. In Colorado, one of the first states to broadly legalize the drug for adult use, marijuana sales now top $1 billion each year and thousands of people work in the industry, in jobs ranging from “bud trimmers” to marijuana tour guides for out-of-state visitors.
Huge grow warehouses sprouted up inside old industrial neighborhoods, and companies that produce marijuana-laced candies, infusions and drinks have large-scale production facilities – all of which may now have a bull’s-eye on their backs.
“I do expect to see the larger investors and businesses targeted,” said Kevin Sabet, a prominent critic of legalized marijuana and former drug-control policy official in the Obama administration, who praised the step. “I’m not sure whether local mom-and-pop marijuana shops will be affected.”
California began allowing the sale of recreational marijuana Monday, joining Colorado, Washington, Oregon, Alaska and Nevada. Massachusetts and possibly Maine are expected to begin sales this year.
Attorney General Jeff Sessions was a vocal opponent of marijuana legalization as a U.S. senator from Alabama. At his confirmation hearing in January, he said he saw value in how the Obama administration evaluated whether to spend resources on prosecuting marijuana cases in states that had legalized the drug.
“I won’t commit to never enforcing federal law,” he said, “but absolutely it’s a problem of resources for the federal government.”
Still, he added, there was legitimate criticism that prosecutors may have shied away from cases that they could have successfully prosecuted.
The Justice Department’s move is likely to have the biggest effect on major funding sources for marijuana retailers and large-scale growing and production operations, said Sabet, who is president of an advocacy group called Smart Approaches to Marijuana.
“It puts the industry on notice in these states who thought they had cover from the states and the feds,” he said. “All these people are going to wake up today with a bit of a heartache because they thought were scot-free, when in reality, they’re not.”
Sen. Cory Gardner, R-Colo., reacted angrily to the news. He accused Sessions of violating promises had made and threatened retaliation.
“This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation. With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states,” Gardner wrote on Twitter, adding: “I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”
Gardner also retweeted a video of President Donald Trump telling a Colorado journalist in a July 2016 interview that if he were elected, he would not use federal authority to shut down sales of recreational marijuana in states that had legalized it.
“I think it’s up to the states,” Trump said then. “I am a states person. I think it should be up to the states. Absolutely.”