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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.

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