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DOJ to Accept Cole Memorandum for Now

jodi.avergun@cwt.com's picture
Commentary by Jodi Avergun

At a Senate Appropriations Committee hearing on the FY 2020 budget request for the DOJ, Attorney General William Barr described the current state of interaction between state and federal law with respect to marijuana.

Senator Lisa Murkowski (R-AK) asked Mr. Barr his opinion on the "federal approach" set out in the STATES Act. Barr stated that he would "favor one uniform federal rule against marijuana, but if there's not sufficient consensus to obtain that then I think the way to go is to permit a more federal approach so that the states can make their own decisions within the framework of the federal law so that we are not just ignoring the enforcement of federal law." Mr. Barr also stated that, though he had not studied it, he would rather take "the approach taken by the STATES Act than where we currently are."

Senator Brian Schatz (D-HI) reminded the Attorney General that in his confirmation hearing, he had stated that he would not go after companies that relied on the Cole Memorandum. Senator Schatz asked whether Mr. Barr intended to restore the memorandum or provide new guidance, assuming there's no agreement on a new statutory framework. Mr. Barr responded that he would "have to make some difficult choices," and elaborated that "reliance suggests people who have already taken action based on the Cole Memorandum." He stated that "one open question []is if states continue to pass these laws, are we going to continue to forebear in those new states? I would like to see Congress address this issue."

Mr. Barr also said that he has not given any internal guidance to the DOJ to address these difficult issues other than the general guidance that he is "accepting the Cole Memorandum for now." Mr. Barr further testified that he has left it up to the U.S. Attorneys in each state to determine what the best approach is in that state, and added that he had "not heard any complaints from the states that have legalized marijuana."

Commentary

Attorney General Barr indicated that the Cole Memo is tacitly revived within his Department and that he is leaving the decision to prosecute cannabis businesses to individual U.S. Attorneys. Given the large number of states that have voted to legalize cannabis in some fashion, state-compliant cannabis businesses can breathe a little easier. Barr also told the Senate that his advisors are considering the STATES Act and that he is strongly considering the merits of its approach.

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