"The current attorney general has had this in his bonnet for decades and he can’t get it out of his bonnet," Gov. Inslee said of Jeff Sessions' action Thursday.
Washington state officials promised to defend the state’s marijuana laws, after U.S. Attorney General Jeff Sessions Thursday rescinded Justice Department policies under President Obama that allowed state-sanctioned marijuana markets to sprout up across the country.
“We will use every single power at our disposal to preserve and protect the mission statement Washington State voters gave us,” said Gov. Jay Inslee, at a news conference at the state capitol, noting that voters approved the initiative legalizing marijuana in Washington state.
What, exactly, they were defending against was not immediately clear. Sessions published a memo saying “previous nationwide guidance specific to marijuana enforcement is rescinded, effective immediate” and directed U.S. Attorneys to “follow the well-established principles that govern all federal prosecutions.” How that will be interpreted in federal marijuana prosecutions across the country is uncertain. Federal drug laws classify pot in the same category of illicit drugs as heroin.
Also, Sessions did not outline any new enforcement priorities, and seemed to indicate that U.S. Attorneys now have discretion to prosecute marijuana crimes as they see fit.
For now at least, Western Washington could see little change.
U.S. Attorney for Western Washington Annette Hayes said in a news release her office will continue to focus on prosecuting cases involving “organized crime, violent and gun threats, and financial crimes related to marijuana.”
“Today the Attorney General reiterated his confidence in the basic principles that guide the discretion of all U.S. Attorneys around the country, and directed that those principles shepherd enforcement of federal law regarding marijuana. He also emphasized his belief that U.S. Attorneys are in the best position to address public safety in their districts, and address the crime control problems that are pressing in their communities. Those principles have always been at the core of what the United States Attorney’s Office for Western Washington has done,” she said.
The interim U.S. Attorney for Eastern Washington, Joseph Harrington, who handles federal prosecutions east of the Cascade Mountains, referred inquiries to the Department of Justice in Washington, D.C.
Sessions rescinded two key Obama-era memos that indicated to states the federal government would not disrupt marijuana markets, so long as states met several conditions.
In 2009, the Obama administration issued the Ogden memo, which directed U.S. Attorneys to take a hands-off approach with patients in clear compliance with state medical marijuana systems.
And in the 2013 Cole memo, the administration announced it would not prevent states from legalizing marijuana, so long as states prevented distribution to minors; kept marijuana revenue from cartels and gangs; impeded pot from being moved to other states; and prevented drugged driving, among other requirements.
Washington state voters approved an initiative legalizing recreational marijuana in November 2012. The first legal recreational pot stores opened in July 2014.
Washington leaders draw battle lines
At a news conference Thursday morning, Inslee served as a booster for Washington’s success with legal pot, boasting that the state’s system was “arguably one of the best-regulated and disciplined markets.”
“We have been very successful making sure kids are not having success getting marijuana from state stores … we have probably the best background check” for marijuana business owners, Inslee said.
Inslee said state data on youth marijuana usage and access shows legalization has been a successful policy and the Trump administration was seeking to thwart Washington’s progress over ideological reasons.
“The current attorney general has had this in his bonnet for decades and he can’t get it out of his bonnet,” Inslee said. “The fears of Jeff Sessions have not been realized.”
Washington Attorney General Bob Ferguson spoke later, saying Sessions’ action was “deeply disappointing,” but also unclear and leaving room for uncertainty.
“I understand he’s removed the Cole memo and Ogden memo,” Ferguson said. “He wasn’t announcing anything broader than that. … It leaves wide open: What exactly does he mean by doing this?”
While Ferguson said he didn’t know whether Washington would take any legal steps against Sessions’ action, his office has spent years preparing.
“Take my word for it, but my legal team has been very focused on this issue from the day marijuana was legalized in Washington state five years ago,” Ferguson said, adding later: “Our legal arguments have been crafted; we are prepared.”
Last summer, Sessions sent a letter to Inslee and Ferguson, expressing concerns over the state marijuana system’s regulatory framework.
State Sen. Ann Rivers, a Republican leader on marijuana policy, who joined Inslee and Ferguson for the bipartisan news conference Thursday, hardly parsed words in addressing Sessions’ criticism of the state system.
“The comments made by Attorney General Sessions … were based on incorrect on information, I would dare say, misguided. It’s my hope we will have an opportunity to learn in greater detail what he has on his mind,” Rivers said. “I believe that, working together, we can come up with something that will be successful for both the feds and the state.”
In Seattle, Mayor Jenny Durkan, who had helped formulate the DOJ’s hands-off policy while she was U.S. Attorney for the Western District of Washington, called a news conference to offer assurances — especially to medical marijuana users but to recreational users as well — that nothing will change in how the city approaches legalized pot.
“You are safe,” she said. In an earlier statement issued Thursday morning, Durkan said the move was “a misguided legal overreach and an attack on Seattle, the state of Washington and a majority of states where the voters have made their voices heard loud and clear.”
Flanked by City Attorney Pete Holmes, Councilmember Lorena Gonzalez and police Chief Carmen Best, Durkan promised the city would not use any resources to crack down on legal cannabis users and sellers.
What she could not say was what actions local federal law enforcement agencies or prosecutors will take. What the feds should do, she said, was divert every resource to combating the scourge of opioid addiction and abuse, which is killing Washingtonians every day.
Diverting precious federal law enforcement resources to what City Attorney Holmes called the “tried and failed policy of prohibition” is “a false tiger that does nothing to protect us,” Durkan said.
When Durkan left her job as U.S. Attorney, she was succeeded by Hayes, her first assistant in the office and a trusted confidante.
Her appointment by federal judges makes her the permanent U.S. Attorney for now; however, President Trump could nominate her replacement at any time.
East of the mountains – where a number of large marijuana growers have set up shop — the Eastern District of Washington has an interim U.S. Attorney, Harrington, while it awaits a permanent appointment to be nominated by Trump and sent to the GOP-controlled U.S. Senate.
Marijuana industry scrambles
As the region’s politicians drew out battle lines on legalization, people in the marijuana industry were scrambling to figure out what the news might mean for their livelihoods.
Attorney Robert McVay, who has worked for several years on marijuana issues, said calls, text messages and emails have been flooding in from nervous clients.
“People are mainly concerned about the uncertainty,” McVay said. “We’re not sure we’re going to see an updated or new memorandum coming out from the Justice Department, or whether it would be a different policy in each judicial district. I think we’ll know more if and when Sessions actually makes a public statement about this.”
McVay said he also was watching Congress, noting that Colorado’s U.S. Sen. Cory Gardner, a Republican, had tweeted his opposition toward new marijuana policy change.
“Marijuana — in states that it’s legal … is pretty popular. You’re going to have congressmen and senators on both sides of the aisle react poorly to this news. We’ll see what kind of pressure they put on the Department of Justice,” McVay said.
He said investors in marijuana businesses are watching closely to see if their property could be at risk.
“The Department of Justice could certainly have an argument — any piece of real estate where marijuana activity has taken place … the government could enforce against it and seize it,” he said. “People are worried about Sessions’ office and the DEA (Drug Enforcement Administration) making an example of one or two or three businesses out there.”
Ian Eisenberg, the owner of Uncle Ike’s Pot Shop, said his phone was “blowing up” with concern from fellow pot proprietors and industry observers. He said he was waiting for more news before he became too worried.
“It’s increased risk, obviously … but I don’t think the sky is falling yet,” he said. “I don’t think we’re going to have jackbooted thugs breaking down doors anytime soon.”
“My first concern — I hope the banking we have now is OK — the credit unions,” Eisenberg said.
A federal policy change could hamper business’ ability to use banking services. Large banks have been hesitant to offer banking to marijuana businesses because of the risk of federal enforcement. When stores first opened in Washington, the marijuana industry operated almost entirely with cash. But credit unions warmed to the businesses, and began to offer limited financial services, a boon to the industry.
“That would really hurt us if we lost that ability,” Eisenberg said.
Salal Credit Union in Seattle was one of the first financial institutions to serve marijuana businesses and now has about 300 cannabis-related clients.
Russ Rosendal, the institution’s president and CEO, said he was not yet sure what effect the change might mean for Salal.
“We’re still trying to analyze both the legal and practical issues,” he said. “We’ve gotten a number of questions from our … cannabis business members. What we’ve been able to tell them — as of right now we’re continuing to serve them. As we learn more information, we’ll take whatever appropriate action we need to take. We intend to continue to serve them as long as we possibly can.”
In 2014, the Financial Crimes Enforcement Network, a federal Treasury Department bureau that collects financial information to combat crime, clarified reporting requirements for financial institutions that serve marijuana businesses. The change was designed to provide more options to marijuana businesses.
“As of today, that guidance had not been rescinded,” Rosendal said. “Until we see how things are interpreted and applied … we’re kind of operating as business as usual.”
Rosendal said banking is important because without those services, people in the marijuana business must deal with large amounts of cash, which could make them targets of crime.
“By having the industry out in the open and monitored and regulated and deposited in financial institutions, it gets it out of the black market,” Rosendal said. “We just think this is really an issue of local control and the federal government should really support these state experiments in cannabis.”
Some in the marijuana industry were confident that Washington weed would prevail and were dismissive of Sessions.
“You have an AG off on a lark.” said Andy Brassington, CFO of Evergreen Herbal, a Seattle pot processor. Brassington was part of a Washington CannaBusiness Association delegation that visited lawmakers in Washington, D.C., last year.
Brassington noted that a Gallup poll last fall showed 64 percent of Americans supported legalizing marijuana, a record-high support for the drug.
“It’s just puzzling he would take the position,” Brassington said, referring to Sessions. “We have a healthy, robust, legal marketplace functioning very well. It’s the will of the people.”
Seattle Times reporter Joe O’Sullivan contributed to this report.