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On one hand it should be welcome news to marijuana supporters that Sessions has validated the potential continuation of Cole Memo enforcement priorities – should an individual U.S. Attorney happen to agree with them. But on the other hand, from a national perspective, this raises the troubling prospect of enforcement practices varying dramatically and arbitrarily, from Cole Memo non-enforcement in one state, to a complete marijuana crackdown in another, based solely on the views of a U.S. Attorney.
It turns out that U.S. Attorneys were not the only ones blindsided by the Sessions announcement. Since 2014, the Treasury Department has had guidance in place as to how financial institutions can permissibly service marijuana-related businesses. And yet while DOJ’s marijuana guidance has all been rescinded, the Treasury marijuana banking guidance remains in place, suggesting a disturbing lack of interagency coordination prior to the Sessions announcement. The result is that two federal departments now effectively have conflicting policies in place with respect to state legalized marijuana.
Sessions’ decision to undo DOJ guidance deferring to state legalized marijuana did not absolve him of his obligation to do so responsibly. Instead he outsourced the difficult decision-making to U.S. Attorneys with no direction, and failed to coordinate with other agencies to ensure a united federal government approach. In the process, an industry operating according to DOJ guidance in over half the country, that provides thousands of jobs and critical medical treatment, has been thrust into uncertainty. As Attorney General, one of Sessions’ primary obligations is to ensure the equal and predictable enforcement of federal law. With his decision on marijuana, he has done the opposite.
John. W. Vardaman III worked at the U.S. Dept. of Treasury & Justice on AML/BSA policy and enforcement and was a contributing author of the Cole Memorandum.
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