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How the Justice Department seems to have misled Congress on medical marijuana

FILE - In this Friday, June 26, 2015 file photo, Bear Westerlind, an employee at the medical marijuana dispensary Kaya Shack, displays different types of marijuana flowers sold at the shop in Portland, Ore.  (AP Photo/Gosia Wozniacka, File)

Last year, the Justice Department warned Congress that a medical marijuana provision in an appropriations bill could  "limit or possibly eliminate the Department's ability to enforce federal law in recreational marijuana cases as well." The "informal talking points," according to a Justice Department memo obtained by Tom Angell, a legalization advocate and writer for, were "intended to discourage passage" of the provision, which was in fact passed and signed into law.

It turns out that the guidance was wrong. In the memo, written by the chief of the Department's appellate section and dated Feb. 27 of this year, the Justice Department says the provision does not place "any limitations on our ability to investigate and prosecute crimes involving recreational marijuana."

The memo's talking points made their way to the floor debate over the measure in May of 2014 and were repeated by a number of House members who opposed the provision. Andy Harris (R-Md.), one of Congress' most vocal opponents of changes to marijuana policy, said that "the amendment as written would tie the DEA’s hands beyond medical marijuana." Rep. John Fleming (R-La.) claimed that the provision would "take away the ability of the Department of Justice to protect our young people... it would just make it difficult, if not impossible, for the DEA and the Department of Justice to enforce the law."

But these claims are inaccurate, the current Justice Department memo suggests. The contention that the provision would hamper the Department's ability to enforce recreational marijuana law "does not reflect our current thinking," according to the memo.

But before advocates of laxer marijuana policy rejoice, this should not be read as a sign, perhaps, that the department is softening its opposition to marijuana reform. Just the opposite, in fact.

The provision in question lists the states that have medical marijuana laws and mandates that the Justice Department is barred from using federal funds to "prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."  In its memo, the Justice Department now interprets the wording in an extremely literal sense. It contends that the amendment only prevents actions against states -- not against individuals or businesses: "It prohibits the Department from preventing the implementation of State laws—that is, from impeding the ability of States to carry out their medical marijuana laws, not from taking actions against particular individuals or entities, even if they are acting compliant with State law."

The Justice Department first hinted at this interpretation of the provision in April. The provision's sponsors, Dana Rohrabacher (R-Ca.) and Sam Farr (D-Ca.), were incensed. "As the authors of the provision in question, we write to inform you that this interpretation of our amendment is emphatically wrong," they wrote in an April letter to then-Attorney General Eric Holder. The intent had been to prevent the Department from pursuing cases against individuals and business, not just states, they say.

"The implementation of state law is carried out by individuals and businesses as the state authorizes them to do so. For the DOJ to argue otherwise is a tortuous twisting of the text … and common sense and the use of federal funds to prevent these individuals and businesses from acting in accordance with state law is clearly in violation of Rohrabacher-Farr," the congressmen said in a statement.

More recently Rohrabacher and Farr called on the Justice Department's inspector general to investigate the department's "apparent violation" of the law.

So far, the Department has not budged. In essence, the memo maintains that the only practical effect of the provision is to stop Justice from prosecuting cases where "the State or state officials are a party" to the lawsuit. But the department wasn't prosecuting cases like that to begin with. That interpretation seems to assume that Congress worked very hard to pass a legislative solution to a problem that didn't even exist.

The department seems to be trying to have it both ways: Before the bill passed, officials argued that it would severely disrupt their enforcement efforts. Now, they're maintaining that it changes nothing at all: a department spokesman told that "we don’t expect that the amendment will impact our ability to prosecute private individuals or private entities who are violating the Controlled Substances Act."

Needless to say, the amendment's sponsors don't see it that way: "This memo uses a lot of legal jargon to twist the issue but Congress was clear," Farr told "Stop prosecuting medical marijuana patients and their providers."