During the Obama administration, when Congress hurriedly shoved 85 words into an enormous budget bill, it appeared an afterthought, as if policymakers simply wanted to recognize that America’s perception of marijuana had changed, but without making any fuss over it. Three years later, that tiny budget clause is protecting the entire multibillion-dollar market.
The Rohrabacher-Farr amendment gave millions the freedom to openly consume marijuana and participate in its production without fear of persecution or prosecution from the federal government. Now, however, Congress may just succumb to the pressure put on it by an attorney general who considers cannabis a hazardous threat, and who aggressively wants these protections removed.
The whole of Rohrabacher-Farr constitutes just one paragraph of federal law. It has one rule: The Justice Department cannot spend even a single cent on prosecuting anyone using or selling medical marijuana legally in states that permit it. Since its approval, it has effectively thwarted most efforts of drug enforcement officers and federal prosecutors to meddle with otherwise legal sales.
Twenty-nine states have now passed measures to legalize marijuana, and the District of Columbia. The notion of Rohrabacher-Farr expiring and the ban on prosecutions ending is spreading chronic anxiety throughout the cannabis industry. The feeling is contagious; especially given the pressures Attorney General Jeff Sessions is putting on Congress to end it.
In California, the freedom of attorneys to advise cannabis companies is under threat. They could face jail time. In Washington, a GOP member of Congress who advocates legalization wonders whether to use his access to the White House to enlist help from President Trump himself to preserve the amendment and its protections. Those who use, grow, or sell now worry if federal raids are imminent.
“It is shocking to think that this is at risk.” This is the opinion of Sarah Trumble, deputy director of politics and social policy at Third Way, an advocacy think tank promoting the relaxing of federal restrictions on weed. She said, “This would give the attorney general a blank check to go after medical marijuana. Without it, he might try, but it would be really hard for him.”
Cannabis-supporting advocates saw the first signs of concern in September, when there was clear hesitancy in the House at preserving Rohrabacher-Farr. In fact, GOP leaders would not even allow a committee to vote on it. Representative Pete Sessions, a Republican from Texas, chaired the committee, and despite being as aggressively anti-pot as Attorney General Jeff Sessions, bears no relation to him.
In an affront to Sessions from the Justice Department, its former colleague, the Senate already confirmed its supportive stance toward preserving the provision. However, for the measure to stay in effect, it must first pass in both houses. The balking in the House came after the attorney general initiated an aggressive lobbying campaign.
Back in May, Jeff Sessions complained to lawmakers, in writing, that the Rohrabacher-Farr amendment was endangering the citizenry and hindering enforcement of the law. “The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives,” he penned.
The uncertainty of the measure has caused conflict among Republicans, many of whom are casting votes to stop the federal government from gaining the authority to override state laws and crackdown on medical marijuana. Even more plan to do so again. Representative Dana Rohrabacher of Costa Mesa is both the amendment’s namesake and the most vocal about it.
Rohrabacher, along with former representative Sam Farr, a Central Coast Democrat, finally got the ban signed into federal statute in 2014, after attempting it repeatedly for a decade. The administration under Obama had just vowed to allow states the right to make their own laws regarding medical and recreational marijuana.
Both the move and the measure revealed a Congress quietly relaxing its war on weed and encouraging the Justice Department to do the same. When it passed, Rohrabacher immediately starting calling judges and insisting they throw charges out of court. “I told them, ‘If you have in your courtroom a federal prosecutor who is now trying to convict someone for possession of medical marijuana, there is only one criminal in your courtroom, and that is the prosecutor,’” Rohrabacher said.
Last year, the Ninth Circuit Court of Appeals in San Francisco notified the Department of Justice that, while the ban on prosecution was in effect, any charges filed against those operating legally under state law would not stick. At least not in California or in any of the other eight western states under the jurisdiction of the appeals court, all but one of which have either in whole or in part legalized cannabis.
In his letter to Congress, Sessions warned that the judgement threatened to provide gangs and drug runners with immunity, but Rohrabacher considers such notions absurd. He accused the attorney general of being discordant with the president, who previously indicated support for medical pot. He insists that Trump would intervene to protect the provision if someone would bring it to his attention.
The representative of Congress, who supports Trump vocally, is potentially the ideal person to do that. However, as with everything surrounding marijuana politics and the administration under Trump, strange and complicated dynamics are involved. Rohrabacher has no desire to “mess up something really important to the president,” that may require his focus, by throwing weed into the equation.
The Congress member would like to broker a deal between Julian Assange, the founder fugitive of WikiLeaks, and the Trump administration. As Rohrabacher explained it, Assange claimed to have “absolute proof” that the emails stolen during last year’s election campaign from Democratic operatives was not the work of the Russians.
Rohrabacher claimed, “That is proof he will provide if we can work something out so that Assange leaves the Ecuadorian embassy in London,” where he has been living in refuge for over five years already. He asserts that the evidence Assange has would “disprove the accusation that our president stole the last election in cooperation with Russia.”
Washington, for the most part, remains skeptical, however, and officials at the White House have been keeping Trump away from Rohrabacher. Meanwhile, Rohrabacher’s alliance with Assange is not stopping policymakers from working with him on marijuana. Strangely, his otherwise political opposite is now his most prominent partner.
Representative Earl Blumenauer, a Democrat liberal from Portland in Oregon, is co-sponsoring the amendment’s most recent version, now called the Rohrabacher-Blumenauer amendment. In reference to the attempts of Sessions to block the measure, Blumenauer said, “There are dozens of Republicans who realize this is a really bad political move.”
“Marijuana got more votes than Trump,” Blumenauer continued. “There are millions of Republicans and independents who voted for it. There are 20 million people a month who use it.” Both Rohrabacher and Blumenauer say that they know the number of lawmakers reconsidering their support for the ban on prosecutions since Sessions began his lobbying campaign: “None of them,” Rohrabacher said.
For Troy Dayton, co-founder of ArcView, a group in San Francisco connecting serious investors with promising weed startups, the situation brings little comfort. Business has been booming specifically because of the prosecution ban. The Houses’ stalling, Dayton warns, was yet another reality check to the cannabis industry that nothing is secure at any time.
Of the ban, Dayton said, “It was revolutionary when it passed.” He explained that people were initially very skeptical, voicing concern about whether it would really have any effect on prosecutions. He answered that, “For the most part, it has.” Of the impact of the ban ending, all Dayton could manage was, “Chilling.”
The consequences become animated when you consider Nathan Hoffman, an attorney facing incarceration and disbarment for his part in advising a large-scale pot growing and sales business officials busted back in 2011. Hoffman’s lawyer, Ronald Richards, has hopes that the latest court ruling may return Hoffman’s freedom and law license to him.
“In a brief I filed last night,” Richards asked, “I said why are they in a rush to disbar my client and convict him when these prosecutions are becoming archaic?” However, if the ban ends in ash, that argument will likely go up in smoke with it.
