Exclusive: Justice Department Admits Misleading Congress on Marijuana Vote

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Leaked Document Shows Why Feds Believe They Can Ignore Medical Marijuana Law

Prior to Vote, Officials Argued the Amendment Would Have Broader Implications Than Medical Marijuana

Justice Department officials misinformed members of Congress about the effects of a medical marijuana amendment being considered by the U.S. House of Representatives, according to an internal memo obtained by Marijuana.com.

The amendment, which lawmakers approved in May 2014 by a vote of 219-189 despite the Obama administration’s objections, is aimed at preventing the Department of Justice from spending money to interfere with the implementation of state medical cannabis laws.

But in the days leading up to the vote, department officials distributed “informal talking points” warning House members that the measure could “in effect, limit or possibly eliminate the Department’s ability to enforce federal law in recreational marijuana cases as well,” according to the document. [Emphasis added.]

The newly obtained memo, drafted by Patty Merkamp Stemler, chief of the Criminal Division’s Appellate Section, admits that the talking points were “intended to discourage passage of the rider” but do not “reflect our current thinking.”

Contrary to the claims about enforcement efforts being broadly hampered by the amendment — which is now federal law — the memo details the Justice Department’s legal argument that, despite House floor statements from both proponents and opponents of the amendment, the measure doesn’t actually prevent the federal government from prosecuting people who are operating strictly in accordance with state medical marijuana laws.

Rather, the 38-page document, dated February 27 of this year, argues that the provision’s effects are limited to preventing federal actions against states or state officials for implementing the laws themselves. In other words: the Drug Enforcement Administration can still raid, and U.S. attorneys can still prosecute, people who grow medical cannabis or operate medical dispensaries, but the Justice Department cannot take action against state officials for issuing licenses to growers and sellers or for collecting tax revenues and fees from state-legal medical marijuana businesses, and federal prosecutors cannot file lawsuits claiming that the state laws themselves are preempted by federal law.

Currently, 40 states, the District of Columbia and the U.S. territory of Guam allow patients to legally access medical marijuana in some form.

A Justice Department spokesperson told The Los Angeles Times in April that he did not believe the Congressionally approved policy would stop prosecutions of individuals following state medical marijuana laws, but the legal details of the federal government’s position were not publicly known until now.

The memo, addressed to “all federal prosecutors,” provides suggestions for pushing back against court motions from defendants who claim their prosecutions for state-legal medical marijuana activity are not lawful under the policy.

The misleading talking points revelation is made in a footnote of the document:

Department of Justice Memo Screenshot

A memo footnote admitting that the Justice Department incorrectly characterized the scope of a medical marijuana amendment in an unsuccessful attempt to defeat it.

In the House floor debate preceding the vote on the amendment last year, opponents seemed to voice the argument that the department wanted them to make to stop the measure from passing. The “amendment as written would tie the DEA’s hands beyond medical marijuana,” said Rep. Andy Harris (R-MD). “The problem is that the way the amendment is drafted, in a State like Maryland which has medical marijuana, if we ever legalized it, the amendment would stop the DEA from going after more than medical marijuana.”

Rep. John Fleming (R-LA), said the measure would “take away the ability of the Department of Justice to protect our young people.”

These and other statements from legislators show a near-universal consensus from lawmakers — both those supportive of and those opposed to marijuana law reform — that the policy blocks federal raids and prosecutions against people acting in compliance with state medical cannabis laws.

It is unclear whether Justice Department officials ever contacted members of Congress who received the misleading talking points to correct the record.

The dispute about talking points aside, members of Congress who supported the amendment, which was passed by the House a second time this June with an even bigger bipartisan margin of 242-186, took strong issue with the department’s interpretation that it does not prevent prosecution of state-legal medical marijuana providers.

“No reasonable person would arrive at this conclusion after reading the amendment and listening to the debate,” Rep. Sam Farr (D-CA), one the measure’s lead sponsors, told Marijuana.com in an interview. “This memo uses a lot of legal jargon to twist the issue but Congress was clear: Stop prosecuting medical marijuana patients and their providers. There was no confusion in Congress when we passed the amendment last year.”

The amendment was also approved this year by the Senate Appropriations Committee, 21-9. Because the measure concerns annual spending limitations, it must be reauthorized each year to remain in effect.

A Justice Department spokesman declined the opportunity to address whether the department sent similar communications to Capitol Hill in advance of this year’s votes.

Last week, Farr and fellow lead amendment sponsor Rep. Dana Rohrabacher (R-CA) asked the Department of Justice’s inspector general to launch an internal investigation into ongoing federal interference in state medical marijuana laws that they view as contrary to the will of Congress.

“Congress is not mixing its words, the DOJ may not use any funds to continue these needless prosecutions,” Farr told Marijuana.com.

The congressman’s spokesman said his office has not yet heard back on the request for an investigation, but expects that the department will revise its view of the law in line with its sponsor’s interpretation.

But Patrick Rodenbush, a Justice Department spokesman, disagrees. “Consistent with the Department’s stated enforcement priorities, 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,” he told Marijuana.com in a statement.

Alex Kreit, a professor at Thomas Jefferson School of Law and longtime observer of the politics of marijuana said that even if the Justice Department’s interpretation of the text turns out to be legally correct, “it’s hard to understand why it would take that position.”

President Obama has said that prosecuting people complying with state medical marijuana laws isn’t a good use of resources, and the Justice Department has issued several public memos formalizing that approach as administration policy. Even the recently obtained internal memo says that “actions against seriously ill individuals, their individual caregivers, or dispensaries that adhere to a strong and effective State regulatory system will generally be considered unwarranted.”

Kreit said it was clear that Congress intended to block the use of funds on going after people who follow state law. “Why not tell prosecutors to use their discretion to abide by that intent instead of telling them to try to get around it with a narrow reading of the text?”

Ironically, the internal Justice Department memo itself argues that relying on a statute’s opponents to interpret its effects is not a particularly useful exercise. After claiming that statements made on the House floor by Congressional medical marijuana opponents “do not shed light on the meaning of the provision,” the document quotes a Supreme Court opinion which reads:

“[W]e have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach. The fears and doubts of the opposition are no authoritative guide to the construction of legislation.”

Read the full Department of Justice memo below.

[scribd id=273620932 key=key-CRAM4tkllhesIM1Xmpri mode=scroll]

About Author

Tom Angell covers policy and politics for Marijuana.com. Separately, he serves as chairman of the nonprofit organization Marijuana Majority, which works to ensure that elected officials and the media treat legalization as a serious, mainstream issue. Marijuana Majority led the effort to get the U.S. Conference of Mayors to pass a resolution telling the federal government to respect state marijuana laws, and orchestrated the first-ever endorsement for marijuana legalization by a U.S. Supreme Court justice (John Paul Stevens). Previously, Tom worked for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (All organizations are listed for identification purposes only.)

13 Comments

  1. How do we un entrance the prohibition industry which cost more than $50 Billion a year and is History’s most golden cash cow. That a lot of high paying jobs that would vanish overnight with no replace job other what will come with canna prosperity. The demographics have changed and the internet has exposed the truth about cannabis prohibition. There is no where in the constitution that makes prohibition legal or is there any scientific justification for its prohibition. Maintaining prohibition is Constitutional treason

    • All those “high paying jobs” are paid with the money stolen from the people who earn it (government calls it taxes) and SHOULD go away. Those asshats who are currently paid to do the prohibition jobs belong in the minimum wage jobs, and NO OTHER kinds of jobs. What they have done to freedom in America deserves nothing more than a minimum wage job and a subsistence lifestyle (and that goes for the damn politicians who back them, too) plus NO welfare, NO food stamps, NO subsidised housing or medical care, either. Had I my preference, they would spend the rest of their lives in a maximum security prison for the heinous crime of depriving Americans of their unalienable rights to self ownership and self-determination, but depriving them of their high paying jobs and requiring they live on minimum wage with no support from society would be the next acceptable result.

  2. Miles Monroe on

    If Professor Kreit *really* is a “longtime observer of the politics of marijuana”, he’s either been observing through a drinking straw from within the safety of the ivy-covered halls of academia, or that “hard to understand why …” comment was dripping with sarcasm that the reporter failed to notice, because we didn’t even finish college, and it’s not hard for us to understand, at all!

    For those who may be similarly challenged as the good professor, here’s the answer: Cannabis no longer illegal means a gigantic loss of power and funding for every cop in the country, from the USAG all the way down to the flatfoot on the street; most of the Drug War subsidy money and plunder from asset seizure goes bye-bye, and perhaps most important of all, “I smell marijuana” will no longer be a convenient, effectively incontestable excuse to ignore what few civil rights you have left and destroy your life, the way “he was reaching for his waistband” gives them the right to kill you.

  3. RECREATIOANAL use is LEGAL in a number of states, and these hot dogs want to mess with MEDICAL? There is ONE and only ONE solution. Get it done.

    “Schedule I Cannabis” is a Damned lie. “Schedule II” will NOT do.

    Cannabis SHALL be removed from CSA “Schedule I”, and placed in “CSA Subchapter I, Part A, §802. Definitions, paragraph (6)”, appended to the list “distilled spirits, wine, malt beverages, or tobacco”, where it will STILL be the least-toxic in the category [by several orders of magnitude].

    In other words, completely EXEMPT from CSA scheduling.

    Anything short of that is unacceptable.

    • Kathleen Chippi on

      “Anything short of that is unacceptable.” agreed because SCIENCE, SANITY and HUMANITY in 2015 DEMAND it.

    • Only problem with that: In a state that has no flexibility and zero tolerance we don’t have any access (without being criminal) so even those who would chose for medical purposes (only) will take it anyway they can get it (for relief). Legislation is to slow, so we will settle for medical access with high tax/regulation, or anyway we can get it, without being “charged”.

  4. Kathleen Chippi on

    ASA supported (and co-authored/authored?) the language, miss-marketed (LIED) it as legalization and then fund-raised on ‘their success’ after passage. The LA Times headlined that congress “quietly legalized cannabis nationwide”…..

  5. medcannabis1 on

    The Prohibitionists Profiteers in law enforcement have built their entire business model on lies and corruption of elected officials. From the beginning this prohibition was based upon racism and fear of the minority community and their sins and vices…. Time to end cannabis prohibition and send those within government who continue to support the American Slave Trade with the corrupt for profit prison industry to the dung heap of history .

  6. Aaron Halsey on

    Falsifying records is a Felony.! If Congressional leaders were true Americans the dept. head would be found impeached from there position and found guilty of knowingly falsifying records, willful neglect of duties, conspiracy to commit fraud, racketeering, etc. So the one holding the original letter or a copy of should be filing a formal complaint with Congress, DOJ, and Inspector General. Then the Supreme court.

  7. I imagine that some Congresscritters will find this latest revelation to
    be worthy of Congressional investigations into abuses of power by those
    entrusted with it.

    With this latest revelation, it should become clear that the only voices raised in support of drug prohibition are those directly benefiting from it. And they are using our taxpayer dollars in order to accomplish their interference, and in the process endanger democracy, itself,

    This is as clear a violation of the Hatch Act if ever there was one: government agencies in essence lobbying Congress on the taxpayer’s dime and time against legislation the public supports but which directly threatens their bureaucratic meal ticket.

    The prohibs have been able to get away with this for decades, but they still don’t undertsand what the demographic shift supporting re-legalization actually means. Namely, that it signals the end of social and political – and therefore, fiscal – support of prohibition. The support that let them violate Hatch with impunity.

    That support is literally dying off. The gravy train is running on inertia, alone, now. But the prohibs carry on as if it is ‘business as usual’, and played the same old game. Only this time, they got caught out.

    This high-level of corruption makes voting meaningless…and revolution inevitable. A fire nobody sane wants to play with. Congress needs to clean this up, and fast. And since the Administration deliberately lied to their faces, this has now gotten personal for those members of Congress whose intelligence was so insulted.

    Summer is still on, and even though the 4th of July is long past, there may be some more fireworks ahead. Directly over Capitol Hill.

  8. Now, isn’t that sweet… another example how the enforcers will parse the English language to keep their jobs. IMO if the DOJ interpretation were challenged in federal court, the DOJ would lose because the intent of the amendment was clear. We consume a lot of taxpayers’ money quibbling over what words mean, expense that would be avoided if we’d just legalize the stuff.

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