Former Deputy Attorney General James Cole wasn’t especially surprised when he learned earlier this year that Attorney General Jeff Sessions rescinded his 2013 landmark namesake memo that provided guidance to U.S. attorneys on marijuana enforcement priorities. But he’s also skeptical that the policy regression will stand the test of time.
In a phone interview with Marijuana Moment, Cole discussed how the memo came to fruition (he conversed with President Barack Obama during the drafting, but declined to comment on the substance of those conversations), the future of cannabis policy in the United States and how, contrary to Sessions’s past statements, good people do smoke marijuana.
Cole, who will be a keynote speaker at the National Cannabis Industry Association’s Cannabis Business Summit & Expo later this month, is currently a partner at the law firm Sidley Austin LLP.
This interview has been lightly edited for length and clarity.
Marijuana Moment: Can you describe your reaction after hearing that Jeff Sessions rescinded your memo?
James Cole: I was not completely surprised. Certainly, the attorney general had expressed his views about marijuana and the marijuana industry. He had also, however, expressed views that he thought that the memo did a pretty good job of trying to rectify and regulate a difficult area because of the legal complications of it.
As to his reasons that it was unnecessary, I didn’t agree with that. I thought that, in fact, it was necessary. My concern in drafting the memo was public safety and trying to make sure that, accepting the fact that marijuana was going to be used on an increasing basis based on the resolutions in the states, you wanted to keep the cartels and the gangs out of it. And the best way to do that was by providing a regulatory scheme that would allow legitimate businesses that are well-regulated to exist so they can comply with the law, so that any revenue that may be generated can be brought into the state coffers, so that the enforcement of the regulations can be funded.
It just seemed to me that certainty being the hallmark of any business, the uniformity of the policy throughout the United States was a necessary element. Right now you’ve got 93 different U.S. attorneys who are given the discretion to decide what to do, and that does not bring certainty or uniformity. Whether there will be a change of enforcement activity, I don’t know. There’s certainly a change in policy and there’s certainly less comfort in the industry about what to do.
MM: On that last point, it doesn’t appear that there’s been a lot of eagerness on the part of federal prosecutors to crack down on the legal marijuana industry since the memo was rescinded. What do you make of that?
JC: I think some of it is a political reality. In the states that have legalized marijuana, obviously U.S. attorneys—although a lot of them are not permanently appointed, many are just acting at this point—they are political creatures. They are politically appointed in one form or another, and many times they look at being a U.S. attorney as a political stepping stone. So I think they’re responsive to what the political will is in the states where they reside.
That’s one of the realities that really enters into the enforcement mechanism. Is this really a place to use the resources of the federal government or not? The concerns that come in that jurisdiction can be vast and wide, and you may have a U.S. attorney in one jurisdiction—one that doesn’t have legalization—reaching out into a jurisdiction that does have legalization because there’s some kind of jurisdiction hook. I haven’t seen that yet. I don’t know if that’s ever going to happen, but that could be one of the concerns. At the end of the day, the rescission of the memo may prove to be more symbolic than it is substantive.
MM: When you started drafting the memo, were you having conversations about the issue with President Obama or White House staffers?
MM: Can you speak to the nature of those conversations?
JC: No, I cannot. No, I don’t talk about my conversations with the president.
MM: What would you tell marijuana business owners concerned about the possibility of a federal crackdown?
JC: Obviously, in most jurisdictions, lawyers are limited in what kind of advice they can give in this space because it is illegal under federal law. So we can advise quite easily about whether or not a particular course of conduct that somebody wants to take is legal or not. We can advise on what we believe the Department of Justice enforcement policy is—it’s a little less certain than it used to be. We can advise on what other laws come into play.
But ultimately, it comes down to a risk appetite for most companies that want to operate here as to whether or not they will accept a level of risk that whatever they’re doing may get prosecuted with whatever comes with that—which is both the threat of fines, maybe imprisonment, perhaps forfeiture.
MM: Do you feel that federal marijuana legalization is an inevitability?
JC: I believe it is. I look at the new [congressional] legislation that’s been proposed, which is, I believe, simple and straightforward. I think Congress is where the activity needs to take place. I think it is moving toward that. There’s growing acceptance of it. I think it’s a matter of ‘when’ and not ‘if’ at this point.
MM: Are there good people who smoke marijuana, contrary to what Sessions has said in the past?
JC: Yes, there are. There are. There are cancer patients, there are people with glaucoma, who get palliative effects from smoking marijuana. I wouldn’t call them bad people. I disagree with that.
Photo courtesy of the Department of Justice.
Google Execs Told Marijuana Jokes To Lighten The Mood After Trump’s Election, Leaked Video Shows
Shortly after the 2016 presidential election, Google executives spoke at an all-hands meeting about the political ramifications of Donald Trump’s victory and fielded questions from employees about the path moving forward.
And to lighten the mood, they also cracked a few jokes about marijuana, which had just been fully legalized in California, the home of Google’s headquarters.
“Let’s face it, most people here are pretty upset and pretty sad because of the election,” Google co-founder Sergey Brin said at the beginning of the meeting. “But there’s another group—a small group—that we should also think about who are very excited about the legalization of pot.”
Employees are heard applauding and laughing in the video, which was leaked to Breitbart by an anonymous source. (The video cannot currently be embedded, but it appears at the top of the page linked above).
“I was asking if we could serve joints outside on the patio, but apparently these things take a little while to take effect,” Brin continued. “It was a huge, huge disappointment.”
“I’ve been bemoaning that all week, I’ll be honest with you.”
Of course, the meeting took on a more serious tone as executives discussed the policy implications of the incoming Trump administration and the role of Google in the modern political landscape. But the meeting didn’t wrap without one final nod to the passage of Proposition 64 in California.
Asked to weigh in on speculation that economist Jefferey Eisenach would be named as the chairman of the Federal Communications Commission, Google’s chief legal officer Kent Walker brushed it off with his own marijuana joke.
“Anybody who thinks they know of the likely members of the Trump administration is taking premature advantage of Sergey’s favorite California proposition,” Walker said. “Nobody knows.”
Just as a matter of housekeeping, California’s adult-use marijuana law went into effect immediately after the proposition’s passage. So technically speaking, anyone 21 or older who would have consumed cannabis after the election wouldn’t be taking “premature advantage” of the law.
Perhaps to that end, Brin closed the post-election event by telling Googlers that “there’s food and drink on the patio,” but warned them to “be careful of the cookies.”
Workers In These Industries Are Most Likely To Consume Marijuana
It’s become increasingly clear that there’s no single “type” of marijuana consumer. But research has identified certain cultural trends, including a new study that examines the prevalence of cannabis consumption among workers in different industries.
The study, published this month in the International Review of Psychiatry, demonstrates that cannabis use is represented in a wide range of employment backgrounds—and some of the industries where using cannabis is most common might come as a surprise.
Let’s start with the numbers. Here’s a list of industries where workers use the most and least cannabis, which the researchers compiled based on 2013 and 2014 National Survey on Drug Use and Health data. The survey asks respondents whether they’ve used marijuana at least once in the past year.
|Industry||% marijuana use|
Note: Not all industries are represented in this list, which is limited by the data submitted by NSDUH respondents. Also, the study does distinguish different “job categories,” but not within each specific industry.
The point of the study wasn’t simply to show what kind of workers are using marijuana, but also for what purposes. If a survey respondent reported using cannabis in the past year, their use was then categorized as either medical, recreational or mixed (i.e. some of their cannabis consumption was recommended by a doctor, but not all of it).
You can see that breakdown in the table below, but in general, the study reveals a diversity of use types among different industries. People in construction tend to be mixed-use consumers, for instance, and people in food services tend to skew recreational. It’s difficult to explain these sub-trends without more data, however.
That said, the researchers were especially interested in cannabis use among construction and mining employees.
“One key difference between the user groups is the higher percentage of medical cannabis users in the construction and mining industries,” they wrote. “This is likely due to the higher injury rates in these industries: construction and mining work require physical stamina, often involve irregular schedules, and expose workers to weather, dangerous tools, and equipment.”
The study notes that there’s conflicting research about marijuana use in these industries, with some arguing that frequent use can result in increased workplace injuries and others contending that the therapeutic use of cannabis “addresses pain and other health problems… that often result from work-related injuries.”
That latter point is also consistent with a study released last month showing “evidence that legalizing medical marijuana improved workplace safety.”
Federal Court Rules In Favor Of Worker Rejected For Medical Marijuana Use
A Connecticut woman’s rights under that state’s medical marijuana law were violated when a company refused to hire her on the basis of her legal cannabis use, and a lawsuit seeking damages against her would-be employer may proceed, a federal judge ruled.
In 2016, Katelin Noffsinger filed suit against Bride Brook Health and Rehabilitation Center, a federal contractor, after a job offer was rescinded following a positive test for cannabis on a pre-employment drug test.
Noffsinger had accepted a management-level position with the firm, which then scheduled a drug test. Prior to the test, Noffsinger informed Bride Brook that she was a qualified cannabis patient under Connecticut’s Palliative Use of Marijuana Act, and used the drug—namely, synthetic marijuana pills, consumed in the evening—to treat post-traumatic stress disorder following a 2012 car crash.
After learning of Noffsinger’s patient status, Bride Brook officials debated over email the best way to inform her that she could not be hired because of her marijuana use.
After the positive drug test and the subsequent rejection, Noffsinger filed an employment-discrimination lawsuit in state court. The case was elevated to federal court after Bride Brook used federal drug laws—including federal cannabis prohibition—to justify their actions.
Unlike some other states including California, Connecticut’s medical-marijuana law, passed in 2012, offers specific employment protections for cannabis patients.
Employers don’t have to accommodate cannabis use during work hours or employees who are intoxicated in the workplace, but any off-hours marijuana use by a certified patient following state law is protected.
In court filings, Bride Brook argued that the federal Drug-Free Workplace Act preempted such protections.
Because Bride Brook was a federal contractor, it was required to perform such drug tests—and had the firm still hired Noffsinger after the positive drug test, it would have been “defrauding” the federal government, the firm argued.
In a ruling issued last week, U.S. District Court Judge Jeffrey Alker Meyer disagreed.
While Meyer rejected Noffsinger’s requests for summary judgment and attorney’s fees, his ruling means that Noffsinger can now seek monetary damages in a jury trial.
The federal Drug Free Workplace Act requires only that employers make a “good faith effort” to maintain a drug-free workplace, Meyer ruled.
Such efforts include posting warnings about drug use and setting an office policy.
A “zero-tolerance” policy that includes actively testing and then rejecting protected applicants on the basis of a test go above and beyond that threshold, Meyer wrote.
A previous ruling in Noffsinger’s case, also by Meyer, was the first instance in which a federal judge ruled that the federal Controlled Substances Act does not preempt state medical-marijuana laws that provide employment protections.
Other classes of workers, including workers in “safety-sensitive” positions and employees of the federal government, may have to wait for similar protections.