Senator Cory Gardner, Republican of Colorado, has struck a deal with President Donald Trump to protect Colorado’s legal marijuana industry from federal criminal investigation and prosecution. In a statement issued on Friday, April 13, 2018, Sen. Gardner said, “I received a commitment from the President that the Department of Justice’s rescission of the Cole Memo will not impact Colorado’s legal marijuana industry.” This “commitment,” of course, is not limited to Colorado’s marijuana industry, and would apply with equal force to all states that have legalized marijuana for medical or recreational use.
The “Cole memo” refers to a memorandum written by then Deputy Attorney General James M. Cole on August 29, 2013, entitled “Guidance Regarding Marijuana Enforcement” and sent to all United States Attorneys. That document sets forth the Department of Justice’s priorities regarding marijuana enforcement under the Controlled Substances Act. The memorandum explains that where a state’s regulation of its legal marijuana industry is robust, “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activities.” The Cole memo effectively eased the federal enforcement of federal marijuana law in states that legalized it.
But that détente was ended by Attorney General Jeff Sessions, who on January 4, 2018, issued a memorandum rescinding previous guidance on marijuana enforcement, including the Cole memo. This action prompted Sen. Gardner to block the confirmation of certain Justice Department nominations. However, with the agreement reached last week, which was confirmed by White House Press Secretary Sarah Sanders, Sen. Gardner stated that he would lift his remaining holds on those nominees.
This agreement offers hope to the legal marijuana industry across the country for a solution to the problem of divergent federal and state laws. Indeed, in his statement Sen. Gardner noted that “[m]y colleagues and I are continuing to work diligently on a bipartisan legislative solution that can pass Congress and head to the President’s desk.”