Trump May Be Seeking To Unleash The Kraken
Gary Michael Smith Esq. | © 2020
****THIS BLOG POST ORIGINATED AS A POTENTIAL OP ED PIECE THAT I INTENDED TO SUBMIT TO A NATIONAL CANNABIS TRADE MAGAZINE. IT WAS AUTHORED IN FEBRUARY 2020. CORONAVIRUS HAS SINCE OVERTAKEN THE NEWS CYCLE, SO I OPTED TO USE IT AS A BLOG POST INSTEAD. DUE TO CORONAVIRUS, I THINK IT FAIR TO SAY THAT ANY IMMANENCY OF A PERCEIVED THREAT IS NOW UNLIKELY****
The last two weeks have brought more revelations of the true mind of Donald Trump about marijuana. If you care about cannabis, you should be paying close attention.
Making international news, Donald Trump said in early February at the annual National Governors Association winter meeting that he admired China’s position on drug dealers: “Now they’ve put it into their criminal statutes. And criminal in China for drugs by the way means that’s serious, they’re getting a maximum penalty,” said Trump. “And you know what the maximum penalty is in China for that, and it goes very quickly.” Yes, Donald Trump openly advocated for the death penalty for drug dealers.
Trump went on to say, “It’s interesting. Where you have Singapore, they have very little drug problem. Where you have China, they have very little drug problem,” and “States with a very powerful death penalty on drug dealers don’t have a drug problem. I don’t know that our country is ready for that, but if you look throughout the world, the countries with a powerful death penalty… with a fair but quick trial, they have very little, if any drug problem.”
Trump’s favor towards a death penalty for drugs is not new. In December 2018 Trump tweeted: “Last year over 77,000 people died from Fentanyl. If China cracks down on this “horror drug,” using the Death Penalty for distributors and pushers, the results will be incredible!”
You might shrug off Trump’s statements as being directed only at opioids. Sure, that is possible, if all that we are talking about is the appropriateness of the death penalty. However, the penalty is not the issue; Trump’s stance on marijuana is. Now consider Trump’s proximate comments against the acts of his administration two years ago. Jeff Sessions, while he was still Attorney General, rescinded the first firewall against Federal cannabis prosecutions, i.e., the Cole and Ogden memos.
The Cole and Ogden memos effectively were DOJ policy statements that deprioritized marijuana enforcement by Federal law enforcement agencies. The Cole memo, for example, stated that the Justice Department would not enforce federal marijuana prohibition in states that “legalized marijuana in some form and … implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana…” Basically, the cops were saying that they would be consciously hands-off and allow the social experiment of medical marijuana to take place.
With the Cole and Ogden memos rescinded, only one firewall remains – Congressional spending. If this second firewall falls, DOJ will be free to enforce Federal marijuana laws.
On the heels of the state of the Union address just two weeks ago, Trump publicly released his proposed budget for 2021. Trump proposes ending state medical marijuana protections, as well as blocking the District of Columbia from legalizing marijuana. These protections to which Trump refers are riders that become amendments to the Federal budget. Trump wants to remove the second firewall.
Recall that as far back as 2001, amendments have been attached to Federal spending bills, deprioritizing Federal marijuana law enforcement and prohibiting expenditure of Federal dollars in pursuit of the same. Year after year, these spending riders kept getting renewed. As recent as June 2019, the United States House of Representatives voted 267-165 to prohibit the United States Department of Justice from using appropriated funds to interfere with state-legal cannabis programs. These amendments are known by their popular name, the Rohrabacher-Farr Amendment, a.k.a. the Hinchey–Rohrabacher, Rohrabacher-Blumenauer, and Joyce Amendment.
The amendments have provided protection to state-legal cannabis programs over the past decade…but only to medical programs. Make no mistake, that protection has been real and has stopped prosecutions of, for example, state-licensed cultivators. See e.g. United States v. Pisarski, 274 F. Supp. 3d 1032 (N.D. Cal. 2017). Putting this in perspective, under Federal law, trafficking in 1,000 or more plants or kilograms – which describes a lot of industry operators – is a felony that comes with a sentence range of 10 years to life in jail and up to $1,000,000 in fines.
The fiscal year ends September 30, 2020. Hence, we come to Trump’s proposed 2021 budget. President Trump proposes ending the amendments – ending the policy of protecting state medical marijuana programs.
Thankfully, this isn’t the first time that an administration has requested that the rider be stricken. Trump’s last two budgets omitted the medical cannabis protections language, President Obama too asked for the policy to be removed, and thus far Congress has ignored those requests and renewed the protections in each spending bill. Does that same Congress still exist today? Or is the current one beholden to Trump and his whim?
Naturally, Trump’s proposed budget begs a question. Why remove the last firewall? Why would Trump want to aggress on marijuana? Why would he risk alienating the marijuana vote – a vote that is statistically relevant in certain segments of his demographic? If past is prologue, Trump may be taking a page out of Richard Nixon’s play book. An attack on marijuana is precisely what Richard Nixon did to silence his opposition.
Consider also that Attorney General Bill Barr has gone on record speaking out of both sides of his mouth about marijuana. On one hand, Barr has been known to say that he favors a softer approach to marijuana. But consider Barr’s testimony to the Senate in January 2019. Barr testified that he believed the status quo of simultaneous Federal illegality and State legality was “untenable.” Barr further stated, “We either should have a federal law that prohibits marijuana everywhere, which I would support myself because I think it’s a mistake to back off on marijuana…”
Barr believes legal marijuana is a mistake, he has the support of a president who agrees with him, the president removed one of only two firewalls protecting marijuana, and the president is actively trying to remove the second firewall. This is not all smoke and mirrors – the existential threat is real.
If Trump unleashes DOJ to make a move, it will do so in a state where it would either allow him to curry political points, to inflict pain – or to his ideal, both. It logically follows that California would be the likely target and that the unlucky epicenter would likely be in Nancy Pelosi’s district.
Gary Michael Smith is an attorney and arbitrator and founding member of the Phoenix Arizona-based Guidant Law Firm. He is also a founding director and current president of the Arizona Cannabis Bar Association, board member of the Arizona Cannabis Chamber of Commerce, and contributing author to GreenEntrepreneur.