If you live in a place where recreational pot use is legal, you’re probably wondering whether you need to start worrying about getting prosecuted for it. The answer is probably not, at least according to initial indications from the dozen or so U.S. attorneys who get to make that call.
Attorney General Jeff Sessions is under heavy criticism — even from within his own Republican Party — for announcing last week that federal prosecutors can decide for themselves whether to press pot cases in the states that have legalized its use, reversing an Obama-era policy in which the federal government mostly turned a blind eye to marijuana (which is still illegal federally) unless it was tied to violent gangs or drug cartels.
“Today’s memo on federal marijuana enforcement simply directs all U.S. attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country,” Sessions said Thursday.
There was bipartisan pushback:
Rep. Ryan Costello (R-Pa.):
In 2016, PA passed a law to allow patients facing certain illnesses to legally use medical marijuana, and I believe it is critically important the Commonwealth’s law and patients who benefit from it are protected. https://t.co/y5xYFUebii— Rep. Ryan Costello (@RepRyanCostello) January 7, 2018
Rep. Julia Brownley (D-Calif.):
The state of California has the right to enact its own policies on marijuana, and the voters have spoken. Rather than wasting taxpayer money going after medical and recreational marijuana users, Attorney General Sessions should concentrate on protecting Americans from criminals. https://t.co/pbdTw6ANYS— Julia Brownley (@JuliaBrownley26) January 5, 2018
California Lt. Gov. Gavin Newsom (D):
"States rights" is nothing more than a catch phrase to Jeff Sessions. CA overwhelmingly voted to legalize marijuana. Sick and tired of elected officials who lack the courage to stand up for those that are unjustly targeted by the failed war on drugs. The time to speak out is now. pic.twitter.com/Pnj4rsKYF9— Gavin Newsom (@GavinNewsom) January 7, 2018
If you’re panicking about Sessions’s announcement, you might not understand exactly what he’s doing. For one thing, the Drug Enforcement Administration doesn’t have nearly enough resources for a serious crackdown on average marijuana users. Recreational use is legal in six states and the District – and sales could also begin in Massachusetts and Maine this year – and three dozen states permit medical use.
And Sessions wasn’t even necessarily directing federal attorneys to go after users to the extent DEA resources permit. He was just opening the door as a practical matter, while sending a strong message nationwide about his well-known and long-standing disapproval of weed, experts say.
“I think it is largely a scare tactic where Jeff Sessions is sending a message from his ivory tower to states that have legalized,” Ezekiel Edwards, criminal law reform project director for the ACLU, told me. “It’s his attempt to try to chill progressive drug policy.”
That’s not to say Sessions or other prosecutors won’t single out a business to make a point. They certainly have the resources to seek charges against a distributor of recreational marijuana if they’re seeking to put a chill on the industry.
(As a side note, the Justice Department can’t go after medical use, because since 2014, Congress has maintained a policy in spending bills prohibiting the agency from prosecuting people for conduct permitted by state medical marijuana laws. I explained that in this Health 202.)
But even on the recreational front, don’t expect wide-scale prosecution anytime soon. Of the 13 U.S. attorneys presiding in the eight states with laws making recreational use legal, several have indicated they’re interested only in going after marijuana distributors or users with ties to crime or violence.
Just four of the 13 U.S. attorney positions in states with approved recreational pot use are held by Trump nominees confirmed by the Senate. The remaining attorneys are either awaiting confirmation, have been appointed as interims by Sessions or are serving as temporary appointees by the president. The AP has a useful list of all 13 attorneys, with summaries of what they’ve said about marijuana.
—In Colorado, where recreational cannabis has been legal for three years, U.S. Attorney Bob Troyer said his primary concern is whether a prosecution would make the state safer.
“We have more freedom and flexibility to make decisions that make Colorado safer by prosecuting individuals and organizations for marijuana crimes that significantly threaten our community safety,” Troyer’s office said in a statement.
“Rather than give U.S. attorneys any specific direction, the memo returns trust and local control to federal prosecutors and clarifies that they know how to deploy their resources to make their districts safer,” the statement continued.
—While Andrew Lelling, the U.S. attorney in Massachusetts, called marijuana a “dangerous drug” in a statement responding to Sessions’s announcement, he also said his office would concentrate on bulk cultivation and trafficking cases, and those who use the federal banking system illegally.
“This office will pursue federal marijuana crimes as part of its overall approach to reducing violent crime, stemming the tide of the drug crisis and dismantling criminal gangs,” Lelling said.
—Adam Braverman, U.S. attorney for the Southern District of California, issued a somewhat more bullish statement, noting that the “cultivation, distribution and possession of marijuana has long been and remains a violation of federal law.”
“We will continue to utilize long-established prosecutorial priorities to carry out our mission to combat violent crime, disrupt and dismantle transnational criminal organizations and stem the rising tide of the drug crisis,” he said.
To cannabis lawyer Sean McAllister, the most extreme, worst-case scenario is that some U.S. attorneys decide to shut down distributors of recreational pot on a large scale. But he, too, says a more likely scenario is that prosecutors chase black market operators as they’ve already done.
“The idea that they’re going to come after some of us who have state licenses, who follow the rules, still seems a relatively low risk at this point,” said McAllister, who is a member of the National Cannabis Industry Association and whose firm handles cases in Colorado, California, Oregon and Florida.
Sessions’s announcement, however, could prompt more members of Congress to get behind measures making marijuana legal on a federal level or at least prohibiting Justice from prosecuting recreational use in states where it’s legal. Sen. Cory Gardner (R-Colo.) is trying to build momentum among senators from those states.
Sen. Ron Wyden (D-Ore.):
I’ve introduced a path to marijuana reform - 3 bills that responsibly deschedule, tax & regulate marijuana, shrink the gap between federal & state marijuana policies and prevent unfair tax bills from hitting legal marijuana businesses. https://t.co/807gS9Jnf2— Ron Wyden (@RonWyden) January 5, 2018
Rep. Ed Perlmutter (D-Colo.):
46 states currently allow for some form of #marijuana use. We’ve come too far to backtrack on this issue now. It’s time to find a real solution that will keep communities safe and respect the will of voters. Let's start by passing the SAFE Act.https://t.co/NktEdP0fZM— Rep. Ed Perlmutter (@RepPerlmutter) January 6, 2018
Sen. John Cornyn (R-Tex.):
AG appropriately said we should no longer ignore federal law. If Congress wants to debate changes to federal law it should do so, not ignore it: Did Jeff Sessions Just Increase the Odds Congress Will Make Marijuana Legal? https://t.co/vhSsP1uCTF via @politicomag— Senator John Cornyn (@JohnCornyn) January 7, 2018
Senate Minority Leader Chuck Schumer (D-N.Y.):
The Attorney General’s decision to rescind the Cole memo was a very bad one & I oppose it.— Chuck Schumer (@SenSchumer) January 6, 2018
I believe that the States should continue to be the labs of democracy when it comes to recreational & medical marijuana. Jeff, this is one place where states’ rights works. Let each state decide.— Chuck Schumer (@SenSchumer) January 6, 2018
But for now, most people who understand the government's traditional approach to pot view Sessions’s move as more of a public-relations strategy designed to signal his overall disapproval of marijuana, especially since it just became legal in California a week ago.
“To me, this is just a knee-jerk reaction to California opening up,” McAllister told me. “A combination of that, and Sessions not personally liking cannabis.”
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AHH: Sessions’ announcement late last week led to an immediate rise in marijuana domestic stocks, but The Post’s Christopher Ingraham reports stocks remain down overall in the days since. The U.S. Marijuana Index, which includes 15 publicly traded companies involved with the legal pot industry, lost 25 percent of its value from the close of trading Wednesday to opening on Friday.
The index has been on something of a roller coaster, as policies and attitudes around legal marijuana have shifted, Chris reports. It lost almost 75 percent of its value in its first year (2015) but regained most of its value through the 2016 election, when voters in four states approved recreational use of pot. Then, the index fell in 2017 as a result of uncertainties about how the Trump administration would approach the industry. It rose again in October in anticipation of California’s move to legalize pot sales at the start of this new year. And now, Sessions announcement has led to another shift.
The takeaway? “The industry appears to be taking a cautiously optimistic wait-and-see approach with regard to the new federal rules,” Chris writes. "However, investors are likely to see how things shake out before pouring more money into the industry."
OOF: Trump’s nominee to lead the troubled Indian Health Service seems to have misrepresented his work experience at a Missouri hospital to a Senate committee, according to former employees, the Wall Street Journal reports. On Robert Weaver's resume, he described holding financial roles at St. John’s Regional Medical Center in Joplin, Mo., from 1997 to 2006, saying he worked in "supervisory and management positions."
"Weaver, a member of the Quapaw tribe of Oklahoma, told the Senate Indian Affairs Committee that his leadership experience qualifies him to lead the IHS, a roughly $6 billion federal agency that operates 26 hospitals and oversees medical care for more than 2 million Native Americans," Christopher Weaver and Dan Frosch report.
But some former St. John’s managers told the Journal they don’t remember him. Former executive Bob Henderson, who was director of patient financial services, said he recalled a subordinate named Rob Weaver who registered E.R. patients, gathered insurance information and collected copays, and who eventually supervised a few other patient-registration workers, in a role other officials described as "entry level."
A spokeswoman for the committee’s chairman, John Hoeven (R-N.D.), said the committee would look into the seeming inconsistencies in Weavers' cited credentials and make sure “all these questions and others are fully answered by Mr. Weaver.”
OUCH: Health care for the poor is out; medical research is in? Lawmakers can’t seem to agree on funding health care subsidies for low-income people or extending the Children’s Health Insurance Program. Yet they plan to increase the National Institutes of Health budget by $2 billion for the third straight year, the New York Times' Robert Pear reports.
The situation “reflects a fascination among legislators with advances in fields like molecular biology, genetics and regenerative medicine, even as they wage bitter battles over just how large a role the government should play in financing health care and providing coverage," Robert writes. Funding that could potentially result in more cures for diseases attracts bipartisan backing. Lawmakers may know someone with cancer or Alzheimer’s. Depending on where they live, they may not know people who are low income or uninsured.
“Disease doesn’t impact just Republicans or Democrats,” Rep. Diana DeGette (D-Colo) told Robert. “It impacts everybody.”
"While the search for new treatments and cures is advancing at breakneck speed, ideas about how to help patients pay for them lag far behind," Robert writes. "And Republicans who sometimes laud the N.I.H. as the National Institutes of Hope also support dismantling the Affordable Care Act, which could limit access to the new treatments."
-- President Trump took to his favorite social medium over the weekend to defend his mental faculties, calling himself a “very stable genius.” (The Health 202 isn't sure which word -- "stable" or "genius" -- is more presumptuous here.) In a Saturday morning tweetstorm, the president fired back against claims in Michael Wolff’s new book “Fire and Fury,” which details concerns from current and former advisers who believe Trump was unprepared to be commander in chief, our colleagues David Nakamura and Karen Tumulty report.
Now that Russian collusion, after one year of intense study, has proven to be a total hoax on the American public, the Democrats and their lapdogs, the Fake News Mainstream Media, are taking out the old Ronald Reagan playbook and screaming mental stability and intelligence.....— Donald J. Trump (@realDonaldTrump) January 6, 2018
....Actually, throughout my life, my two greatest assets have been mental stability and being, like, really smart. Crooked Hillary Clinton also played these cards very hard and, as everyone knows, went down in flames. I went from VERY successful businessman, to top T.V. Star.....— Donald J. Trump (@realDonaldTrump) January 6, 2018
....to President of the United States (on my first try). I think that would qualify as not smart, but genius....and a very stable genius at that!— Donald J. Trump (@realDonaldTrump) January 6, 2018
Trump even made reference to the media’s treatment of former President Ronald Reagan, criticizing “the Fake News Mainstream Media” for “taking out the old Ronald Reagan playbook and screaming mental stability and intelligence.” The tweet referred to questions raised about the mental fitness of Reagan, who disclosed an Alzheimer’s diagnosis several years after he left office, in 1994.
--Our colleague Callum Borchers writes the comparison to Reagan may be ill-advised. “If Trump's aim is to dismiss concerns raised by Michael Wolff's ‘Fire and Fury’ as completely unfounded, then Reagan is not the best historical reference,” Callum writes. “Trump's characterization of Reagan coverage isn't quite right. Journalists didn't speculate about Reagan's ‘stability and intelligence’ so much as wonder whether his memory lapses — sometimes apparent in public — could impair his ability to govern."
--And read The Post’s Avi Selk on a study that concluded several former presidents -- including John Quincy Adams, Thomas Jefferson, John F. Kennedy and Bill Clinton -- actually had genius-level intelligence.
— We'll be watching closely over the next two weeks for whether Republicans include two bills to stabilize the Obamacare marketplaces as part of a measure to keep the government open. At this point, we'd be surprised if they did. Even Sen. Susan Collins (R-Maine), who had predicated her vote for the tax overhaul on promises that the Senate would pass a measure funding extra subsidies for cost-sharing discounts, seems to be backing away from the timeline she had initially insisted upon.
Recall back in December, when Collins insisted on passing the Alexander-Murray CSR bill before a vote on taxes. At the time, she said if lawmakers were going to repeal the mandate to buy coverage, Republicans must also act to lower marketplace premiums. Then she assented to a tax vote first, saying she'd been promised that Alexander-Murray and her own reinsurance bill would get a vote before the end of that year.
Collins is still waiting. And now the Maine senator seems to be cool with an even longer time frame, as long as the stabilization measures are passed before the mandate is officially kaput two years from now.
“When the mandate is repealed in 2019, we must have other health care reforms in place in order to prevent further increases in the cost of health insurance,” Collins’ office told Inside Health Policy late last week. “Senator Collins believes that averting these price spikes, particularly for low-income families, should be a goal that members of both parties can embrace.”
— Republicans who have found themselves at odds with President Trump have either buckled or decided to retire. Not Cory Gardner. “The junior senator from Colorado is not one of the loud and persistent GOP critics who have become fixtures on cable news ... But Gardner — who also heads the campaign operation charged with hanging on to the Republicans’ Senate majority — is becoming known as someone who will do more than posture when he and the Trump administration disagree,” my colleagues Karen Tumulty and Sean Sullivan report.
The latest and most striking example came Thursday, when Gardner vowed to stand in the way of every nomination the Justice Department sends to the Senate in protest of Sessions's new policy allowing federal prosecutors to crack down on the marijuana industry.
“His position is undoubtedly beneficial to his own political situation, given the popularity of legal marijuana in his home state, a battleground where he will be facing reelection in 2020,” Karen and Sean write. “Though he has a staunchly conservative voting record, Gardner, a former Senate staffer and state lawmaker, has proven skillful at navigating his state’s tricky political terrain.”
— Some leading conservatives are pretty bummed about the dimming prospects for Obamacare repeal this year. Eleven of them have penned an open letter to Trump, House Speaker Paul Ryan (R-Wis.) and Senate MajorityLeader Mitch McConnell (R-Ky.) urging them to keep repeal-and-replace a top legislative priority in 2018. They're specifically asking GOP leaders to resume consideration of a bill from Sens. Bill Cassidy (R-La.) and Lindsey Graham (R-S.C.), which was the most recent health-care measure to tank in the Senate amid disputes over how to treat Medicaid.
“We have been meeting with congressional leaders, White House officials, and others in the policy community since last fall to refine these new policy recommendations,” the activists wrote. “We are eager and willing to work with you in advancing these policies, which we believe would have greater traction with members of Congress and voters.”
The letter was signed by Rick Santorum, Stanford University professor Lanhee Chen, the Galen Institute's Grace-Marie Turner and Heritage Action's Mike Needham, among others. The Health 202 advises them to deliver it to Trump along with some McDonald's coupons and a 12-pack of Diet Coke.
--A few more choice reads from The Post and beyond:
- The Senate Finance Committee holds a nomination hearing for Alex Azar to serve as the secretary of Health and Human Services on Tuesday.
- The Senate Health, Education, Labor and Pensions Committee holds a hearing on the opioid crisis on Tuesday.
- The Cato Institute holds a book discussion on "The Elephant in the Brain: Hidden Motives in Everyday Life” on Tuesday.
- The House Veterans’ Affairs Subcommittee on Economic Opportunity holds a hearing on "Home Loan Churning Practices and How Veteran Homebuyers are Being Affected” on Wednesday.
- The National Academy of Sciences holds a workshop on "The Promise of Genome Editing Tools to Advance Environmental Health Research” on Wednesday and Thursday.
- The Bipartisan Policy Center holds a discussion on “Reinventing Rural Health Care: A Case Study of Seven Upper Midwest States” on Jan. 17.
- The House Veterans’ Affairs Subcommittees on Health and on Economic Opportunity hold a joint hearing on addressing veteran homelessness on Jan. 18.
- Kaiser Health News holds an event on what’s in store for health care in 2018 on Jan. 18.
Watch how Trump's aides have defended the president against Michael Wolff, his new book "Fire and Fury," and Stephen K. Bannon:
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