Sessions Confirmed as Attorney General: Now What?

Cannabis industry lawyers weigh in on what cultivators can do to protect themselves from a federal crackdown.

Jeff Sessions’ confirmation to the United States’ highest law enforcement position has made the future of the cannabis industry even murkier, as cannabis business owners now must contend with a prohibitionist attorney general.

Sessions’ nomination was approved by the Senate in a near-party-line vote, 52-47, on Feb. 8.

Throughout the hearings, the former Alabama senator was evasive when answering questions relating to the legal marijuana industry. Repeatedly, he said he would need to review the Cole memos before determining if he would continue those policies and practices. In those same hearings, however, he promised a focus that is in line with the Trump administration’s tougher law enforcement agenda.

“My gut instinct is that there is going to either be a revision to the Cole memos or a stricter enforcement of them,” says Ohio-based lawyer and cannabis legislation expert Thomas Haren. He believes that while Sessions is a hardline prohibitionist, President Trump is a supporter of the industry, having come out in favor of medical marijuana and deferring the decision over recreational use to the states.

“Trump picked Sessions for his stance on immigration … not his position on marijuana,” Haren continues.

Sessions’ confirmation should come as a warning to cultivators who might be getting away with non-compliant practices, according to Bob Morgan, former Illinois pot czar and current Special Counsel at the Much Shelist law firm in Chicago.

“The easiest thing a cultivator can do to put a bright red target on their business and livelihood is to violate both federal and state laws,” he says. “The confirmation of Jeff Sessions as the new U.S. Attorney General means cannabis cultivators have even more incentive to strictly follow their respective state laws.”

Morgan suggests that Sessions might not make cannabis a priority, pointing at the new attorney general’s apparent acknowledgement of the usefulness of the Cole memorandums’ enforcement priorities. He also believes that “A.G. Sessions will … lack the funding or staffing to wage an all-out-war against the state-legal cannabis industry.”

Morgan has advised his clients to be more conservative than risk-takers and to focus on “ensuring your product is not being transported across state lines, implementing audits to verify your investors are not from criminal enterprises, and taking reasonable precautions to prevent any diversion of the cannabis.”

Josh Kappel, partner at Vicente Sederberg, doesn’t believe there will be a crackdown, but did offer some insight into past federal raids and what lessons cultivators can learn from them.

“The Bush administration didn’t go after places that had strong community support,” Kappel says. “That administration went after businesses that broke another law, like shops and growing operations that are within 1,000 feet of a school.”

In that vein, Kappel suggests cultivators become “good participants in the community,” in order to have locals speak in favor of the cannabis industry on top of being in complete compliance with all local and state regulations.

“Now is not the time to operate in any gray areas,” he says.

Outside of that, all three lawyers say it is very much a “wait-and-see” environment right now.

“Anybody currently operating is operating against federal law,” Haren says. “It’s up to Congress to change those laws.”

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