Sessions’ Memo Was ‘An Abdication Of Responsibility,’ Former Colorado US Atty. Says

Ryan Warner: This is Colorado Matters from CPR News, I'm Ryan Warner. The Trump Administration sent the marijuana industry into a tizzy Thursday. It rescinded Obama era guidance to federal prosecutors that explicitly told them to lay off small time marijuana cases and tacitly allowed the recreational pot industry to grow, as long as it complies with state laws. Now things are murkier. For some perspective on what this means in Colorado, let's talk to the former U.S. Attorney here, John Walsh, who's now in private practice in Denver. Welcome back to the program.

John Walsh: Happy to be here.

RW: First off, what do you think of Attorney General Jeff Sessions' announcement?

JW: Well, I think it may be more noise initially than actual change in policy on the ground. I'm not sure we're actually going to see a dramatic difference in federal marijuana enforcement here in Colorado, in any event. But what it does do, clearly, is create confusion. Confusion about what the scope of the federal marijuana enforcement policy really is. And it's confusion not just for the state of Colorado, and Colorado State government, and the marijuana industry, it's confusion for U.S. Attorneys in the field.

RW: When you say confusion, is it that you wished he would have laid out some other policy as opposed to just rescinding the old one?

JW: I think it's fair to say that we all expected that this Attorney General, who's very hostile to marijuana legalization was going to-

RW: He has compared it to heroin.

JW: Exactly. He has a strong view on it. I think we all expected a change in the policy. What I didn't expect is that he would simply rescind the prior policy and not replace it with anything else.

RW: Okay, so the prior policy is known as the Cole Memo. There are actually lots of memos from the federal government about marijuana. You were U.S. Attorney when the Obama Administration laid down these guidelines in the Cole Memo in 2013. In fact, you helped push the administration to issue some guidance, along with other western U.S. Attorneys. Why did you think that kind of guidance was necessary?

JW: Well, you may recall Ryan, because I know you were covering this story back at that point, that one of the constant criticisms in 2010, 2011, 2012, of the Department of Justice, is that we weren't clear about what our enforcement policy was on marijuana in states that had legalized marijuana. That was a problem for the U.S. Attorneys in the field because we were having difficulty figuring out what is the basis on which we would decide to prosecute a state licensed dispensary, for example. We needed to have some sort of neutral criteria upon which to decide. So a group of us got together, formed a marijuana enforcement working group of U.S. Attorneys, and went to the department and said, "We need some guidance. We need some national consistency here."

RW: So if people have a perspective that this Cole Memo, this directive from the Obama Administration, was sort of top down, that's not accurate.

JW: No, it's not at all.

RW: It's really the western states clamoring for some guidance.

JW: That's true and, in fact, when the Cole Memo was put together there was a lot of back and forth and a lot of input from U.S. Attorneys in the field to make it a workable document.

RW: So do you think rescinding that and offering nothing in its stead is an irresponsible move on the Attorney General's part?

JW: I think it's ultimately an abdication of responsibility because it's in essence the Attorney General saying to the U.S. Attorneys, "You're on your own on this. Make whatever decisions you want to make. Good luck."

RW: Indeed, Sessions really seemed to leave it up to U.S. Attorneys to decide individually what cases are important to pursue. He wrote, "Prosecutors should follow well established principles that govern all federal prosecutions." Then, naturally, the attention turned to the top federal prosecutor here, that's U.S. Attorney Bob Troyer, who took over for you in that job. Let me read part of his statement, which everyone was waiting for on Thursday, "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. We will, consistent with the AG's latest guidance, continue to take this approach." It sounds pretty straightforward that he'll keep doing what he's doing. You know Mr. Troyer. What do you make of his response? Do you see wiggle room for him to change course?

JW: Well, the thing to keep in mind is that Bob Troyer is a career federal prosecutor and he has been wrestling with this issue for the last seven years. So he understands where the difficulties are and he certainly understands the context here in Colorado for legalized marijuana. We, and Bob was very much a part of this, worked closely in the U.S. Attorney's Office with thegovernor's office and state regulators to try to make this system work to ensure public safety.

RW: Okay, so the current U.S. Attorney was at the table as Colorado figured out how to implement recreational marijuana.

JW: As we, on the federal side, worked with the state, of course we didn't make the decisions on how the state's system was going to work, but we gave input about the implications for the federal side, and Bob was very much a part of that.

RW: Does he like marijuana? Dislike marijuana?

JW: I think his personal opinions really don't matter. He's going to enforce the law to the best of his ability following the guidance he gets from the Attorney General. But here's the key thing, what the Attorney General said yesterday was, "Use your best discretion as a prosecutor based on circumstances and cases that come to you." That's what Bob Troyer's been doing for the last seven years and he's going to keep doing it.

RW: So you don't think there's a course change ahead from the U.S. Attorney's Office here in Colorado?

JW: I don't. I don't in the immediate run, unless a direction comes from the department in Washington saying, what we meant when we withdrew the Cole Memo is something more. Something that they haven't said yet, but something more about aggressive marijuana enforcement.

RW: You're listening to Colorado Matters. I'm Ryan Warner and we are speaking with the former U.S. Attorney in Colorado, John Walsh, about the announcement Thursday from the U.S. Attorney General when it comes to marijuana. I just want to say very quickly that the current U.S. Attorney is serving with Jeff Sessions' blessing. It's possible that President Trump could nominate someone else. That might change the dynamic, add a bit more uncertainty.

JW: Yes.

RW: You are known in part, for cracking down in 2012 on medical dispensaries that were operating near schools. This was before recreational marijuana was legalized in Colorado. And that speaks to the discretion in power U.S. attorneys have in deciding how these laws get enforced. I wonder, why did that feel particularly egregious, in need of enforcement? The proximity to schools. And what does that tell us about how maybe the U.S. attorney serving now, might prioritize prosecutions going forward?

JW: So that effort, where we sent letters to, in the end I believe it was close to 100 dispensaries that were close to schools, is really a reflection of our effort at the time to make sense of a very difficult situation. A unique situation where federal law and state law, frankly, are at odds with each other. We were looking for neutral criteria to decide how to be fair in the way we prosecuted. So rather than just go out and say, okay, all these medical dispensaries are technically in violation of federal law and we're just going to choose a few at random and prosecute them. We decided what's really in the interest of public safety and public health. Marijuana dispensaries across the street from a middle school, and there are a couple of examples of that, serve, that's not a good situation, it's just not. We used federal law that provide for enhanced penalties for drug dealing close to schools as a hook, in essence. To establish a rule that we were going to put out to the entire industry saying you can't be close to a school.

RW: You needed to triage in some regard, what you were going to prosecute, what you were going to enforce, and this was a way of doing it.

JW: That's an excellent way of saying it, but it wasn't just triage, although that was the principal part of it. It was letting the community know how we were making these decisions.

RW: What might that tell us about how the current U.S. attorney could triage maybe under this new regime given what has changed in Washington.

JW: I think it's important to recognize that the eight aggravating factors laid out in the Cole memo-

RW: This is what was rescinded.

JW: Exactly-

RW: This is not a toothless memo by any means. It said, your job, U.S. attorneys, is to prevent the distribution of marijuana to minors; to break up cartels, gangs, criminal enterprises. To prevent the diversion of marijuana from states where it's legal to states where it's not.

JW: Absolutely, and all of those factors remain important factors for the use of prosecutorial discretion. In other words, if you've got cartel involvement in a marijuana enterprise here in Colorado, that was under the Cole memo and remains an important aggravating factor that might lead the U.S. Attorney's Office here to bring a case.

RW: I mean it's interesting. So this memo is rescinded, and yet it sounds like its guiding principles will still guide the U.S. attorney here. You have been critical of the Attorney General. But some of the confusion about how federal law enforcement should handle marijuana undoubtedly lies at the feet of Congress, right? They haven't taken much action since states started legalizing medical or recreational marijuana. Couldn't Congress just clear things up and address this fundamental friction between state and federal law.

JW: Well I have to tell you that I wonder whether the silver lining of this decision yesterday by the Attorney General will be to galvanize Congress to actually take action and to clarify this area. This is something that we within the department talked about years ago, the need for some statutory revision to bring federal law and state law closer together. That hasn't happened.

RW: As a former federal prosecutor, I hear you asking Congress to act? I think that that's true?

JW: That's absolutely true. I think there needs to be action.

RW: This is a story that CPR news is covering and you can read it actually at CPR.org. John, thanks for being with us.

JW: My pleasure.

RW: John Walsh was U.S. Attorney in Colorado from 2010 to 2016, now in private practice in Denver. He was appointed by President Obama. We talked about the Trump administration's new direction on marijuana enforcement