DENVER – Officials from Colorado reacted sternly and swiftly to the Thursday decision by Attorney General Jeff Sessions to rescind an Obama-era Justice Department memo that said the federal government wouldn’t interfere with states’ legal marijuana programs, and Colorado’s U.S. attorney said his office didn’t plan to make many changes on how it handles enforcement.
The 2013 memo from James Cole, who was deputy attorney general at the time, directed law enforcement officials not to interfere with marijuana programs like Colorado’s except for when marijuana was leaving states where it was legal or getting in the hands of children.
The Thursday memo from Sessions, who has throughout his tenure as attorney general left many wondering how his Justice Department would handle marijuana, called the Cole memo “unnecessary.”
In the new memo, Sessions wrote that the new policy will allow U.S. attorneys across the country decide how to dedicate their resources toward marijuana law enforcement in their regions.
U.S. Attorney for Colorado says not much will change here; AG seeking more info
U.S. Attorney of the District of Colorado Bob Troyer responded to the new guidance by saying his office already focused on the black market and stopping marijuana from getting to children in Colorado.
“The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions – focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state,” Troyer said in a statement.
“We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado,” he continued.
Colorado Attorney General Cynthia Coffman hosted a news conference about the effects of the new developments at 1 p.m., which you can watch by clicking here or in the video player below.
Coffman said she had been in touch with Troyer and that she believed the new guidance meant local federal prosecutors would continue to focus on gray and black markets and diversion, and that it wouldn't mean agents would be targeting businesses abiding by state laws and legitimate operators in the state.
"I believe that the priorities laid out in the Cole Memo, including preventing the distribution of marijuana to minors, preventing criminal enterprises and cartels from using our state’s laws as a cover or pretext for illegal activity, and focusing on public health and prevention, are still critically important," Coffman continued. "In the past, my office has worked well with the U.S. Attorney’s Office in Colorado as enforcement priorities have been set, and I expect that partnership and our open communication to continue.”
Coffman said she had further briefings scheduled for later Thursday.
Sen. Gardner excoriates Sessions in Senate speech
U.S. Sen. Cory Gardner, a Republican who initially opposed the 2014 legalization of recreational pot in Colorado, was irate with the decision, saying Sessions broke a promise that he and President Donald Trump made that they wouldn’t go after legal marijuana programs.
“Up until about 8:58, maybe it was about 8:55, until Twitter told us otherwise, we believed the will of Colorado voters would be respected. Why did we believe that?” Gardner said in a fiery speech on the Senate floor Thursday.
“At the time, prior to his confirmation, then-Sen. Sessions told me there were no plans to reverse the Cole Memorandum. Then Sen. Sessions told me that marijuana simply wasn’t going to be on President Trump’s agenda. It was something they weren’t going to deal with. It was something that President Trump simply wasn’t going to focus on,” Gardner continued.
“That was back in the spring of 2016 and up until 858 this morning, that was the policy. One tweet later, one policy later, a complete reversal of what many of us on the Hill were told before the confirmation, what we had continued to believe for the last year, and without any notification, conversation, or dialogue with Congress – completely reversed.”
Sessions wasn’t the only target of Gardner’s ire, however; Trump was scorned as well.
“In Colorado, in July of 2016, President Trump was asked this question: When asked if President Trump would use federal authority to shut down sales of recreational marijuana in states like Colorado, then-candidate Donald Trump said, ‘I wouldn’t do that,’” Gardner said. “When asked if he, then-candidate Trump, thinks Colorado should be allowed to do what it’s doing, then-candidate Trump said, ‘It’s up to the states, absolutely.’ That was then-candidate Trump’s position. I would like to know from the attorney general: What changed?”
And he said that he believes that Colorado voters are having their will stepped on.
“I believe what happened today was a trampling of Colorado’s rights, its voters. And sure, this was a heavily-debated issue, something that I already said that I opposed. But the people of Colorado spoke. They spoke loudly,” Gardner said. “And I believe that if the question were asked today, they’d even have more support for the decision they made back several years ago.”
Gardner said he was putting a hold on every nomination to the Justice Department “until Attorney General Jeff Sessions lives up to the commitment that he made” in his meeting with Gardner that preceded Gardner’s vote to confirm Sessions – “the conversation we had that was specifically about this issue of states’ rights in Colorado,” Gardner said.
“The people of Colorado deserve answers. The people of Colorado deserve their will to be respected,” he added before yielding the floor.
Hickenlooper says most concerns lie with banking industry
Gov. John Hickenlooper, a Democrat who has been in a back-and-forth with Sessions over marijuana since the Trump administration took office, echoed Troyer’s comments that Colorado was already working to prosecute bad actors and to protect those operating legally within the state’s program.
“The Cole memo got it right and was foundational in guiding states’ efforts to regulate the production and distribution of marijuana. Colorado has created a comprehensive regulatory system committed to supporting the will of the voters,” Hickenlooper said in a morning statement.
“We constantly evaluate and seek to strengthen our approach to regulation and enforcement,” he continued. “Our focus will continue to be the public health and public safety of our citizens. We are expanding efforts to eliminate the black market and keep marijuana out of the hands of minors and criminals. Today’s decisions does not alter the strength of our resolve in those areas, nor does it change my constitutional responsibilities.”
Later Thursday, at a news conference he hosted at the Capitol, Hickenlooper elaborated on his statement, saying that he doesn't believe the Justice Department will be raiding many shops in Colorado.
“I think this is going to be a case where the bark is worse than the bite. Maybe there will be one or two dispensaries that are made an example of. I think it’s a waste of money. But that might happen,” Hickenlooper said.
But he added that he believes the Justice Department knows that it can’t afford to implement a massive crackdown on legal marijuana states when it is already tasked with battling the opioid crisis, human trafficking and other national law enforcement priorities.
“We’ve got some serious problems the Justice Department has made some serious progress in, and I feel comfortable that they understand, in a world of limited resources, what their priorities are.”
Hickenlooper said Sessions recognized those limitations in their meeting last year, and told him that his priority would be on heroin, opioids and sex trafficking.
“They are not going to take away resources from those higher-magnitude crimes to address some pot dispensary on South Broadway,” Hickenlooper said Thursday.
But he did say he worried that the new directive might hamper the ability of some banking initiatives that the industry has recently been allowed to use.
“We’ve worked so hard to diminish and ultimately eliminate the black market, and if you push it back into a cash economy, that’s going the other direction. That’s engendering the black market and illegal activity,” he said.
And he urged Congress to act to protect states that have already legalized marijuana programs.
“If states are indeed the laboratories of democracy, which I hear Republicans and Democrats saying almost equally now, maybe Congress should examine cautious legislation that allows states where the public has voted to legalize some form of marijuana – to conduct experiments in those states or to conduct legal activities in those states,” Hickenlooper said. “Provide them a law that allows this to be legal activity in the same way that we do with alcohol.”
Hickenlooper maintained that he was proud of the work Colorado has done in analyzing its program since it began.
“We’re trying to get it right. Every year, we’re trying to get the enforcement better; we’re trying to get the regulatory framework better. I mean, no one has ever done this before, and we’re working as hard as people can work, and I think we’ve made a lot of progress,” he said. “I think most states hold us up as, probably the national model of, you know, they made some mistakes but they did it first. And they got it pretty right and they corrected, rapidly, their problems. We’ll see.”
He added that the state would look into suing the Justice Department, but said regards to that: "I don't think there's any benefit to get into a controversy....You escalate this into a war, you can't predict what the consequences are."
Rep. Mike Coffman, Democrats also unhappy
Rep. Mike Coffman, R-Colo., said that Sessions needed to read the U.S. Constitution and said the rescinding of the Cole Memo was an “overreach” by the feds.
"Attorney General Sessions needs to read the Commerce Clause found in Article 1, Section 8, Clause 3 of the U.S. Constitution that limits the power of the federal government to regulate interstate and not intrastate commerce,” he said in a statement. “The decision that was made to legalize marijuana in Colorado was made by the voters of Colorado and only applies within the boundaries of our state. Colorado had every right to legalize marijuana, and I will do everything I can to protect that right against the power of an overreaching federal government.”
In an interview Thursday afternoon, he suggested creating a limiting amendment that would block federal law enforcement from using money to meddle in states' legal marijuana programs. Coffman also said that despite not being in favor of legalizing marijuana initially, he would fight to defend the Colorado voters' decision. And he said Congress should make a fix.
"Members of Congress should move to make sure that federal law comports with state law in those respective states," he said.
Sen. Michael Bennet, D-Colo., said: “In rescinding the Cole memo, the Attorney General failed to listen to Colorado, and will create unnecessary chaos and confusion.”
Denver Mayor Michael Hancock said Denver had “become an international model for how to do it right,” and said Thursday’s DOJ decision was “another example that this admin doesn’t listen, doesn’t pay attention, doesn’t get it.”
Rep. Jared Polis, D-Colo., who is part of the Cannabis Caucus in Congress, continued to push for marijuana to be removed from the DEA’s Schedule I list and to be regulated like alcohol.
“The growing Colorado economy is in jeopardy with the news that the Attorney General will now go after states that have decided to regulate marijuana….At stake is a growing industry that has created 23,000 jobs and generated $200 million in tax revenue in Colorado.”
Polis sent a letter to President Trump Thursday afternoon asking him to override his "defiant" attorney general's latest memo.
“This step could drag us back to the days of raids on legal dispensaries and people living in fear being jailed for using the medical marijuana they need,” Rep. Diana DeGette, D-Colo., said in a statement. “It could create a chilling effect on an industry that employs thousands of people in Colorado alone, where sales now top $1 billion per year. The federal government shouldn’t take punitive steps that undermine the will of our citizens expressed at the state level.”
DeGette has authored legislation to protect state marijuana laws and further inform courts on marijuana matters.
Rep. Ed Perlmutter, D-Colo., said the decision “creates even greater uncertainty in the industry and shows a lack of respect for states’ rights.”
Boulder County District Attorney Stan Garnett, who has been heavily involved in marijuana issues since his election and who served, on the National District Attorneys Association's committee on marijuana positions, agreed that marijuana should be managed like alcohol.
"If the Trump administration is envisioning some kind of national crackdown on marijuana, I don't know how that's going to work," Garnett told Denver7. "It's going to take a lot of resources, and I don't think it's going to be as effective as the legalized, regulatory market that we have in Colorado."
He said there remains one main question as to the new directive: "How aggressive does the federal Department of Justice become?"
Effects on industry in Colorado?
According to data from the Colorado Marijuana Enforcement Division, there were 509 licensed marijuana retail stores; 720 cultivators; 279 product manufacturers; and more than 35,000 people working within the industry as of Jan. 2.
In 2016, Colorado sold more than $1.3 billion in recreational and medical marijuana combined, bringing in just under $200 million in tax revenue for the state. That money is funneled primarily to public school projects and public health and safety initiatives.
Of the $1.3 billion sold last year, $875 million came from recreational marijuana products. A pro-legalization research company based in Denver said in July that the state had brought in $506 million in retail sales since January 2014.
The state is also setting aside $6 million a year in pot tax revenue to reimburse police investigating black-market activity. In June, the attorney general returned 74 indictments in the largest illegal marijuana bust in state history.
This is a developing story; check back with Denver7 for updates.