By Tom Angell
Feds Argued Medical Cannabis Measure Could Prevent Enforcement Against Recreational Marijuana — But Changed Tune After Congress Ignored Concerns
The U.S. Department of Justice has changed its mind and now says it can’t locate talking points that the federal government sent to Capitol Hill in a failed attempt to defeat a Congressional medical marijuana amendment.
The department previously told Marijuana.com that it had the talking points but that it was denying the site’s Freedom of Information Act (FOIA) request because the documents were exempt from being publicly released.
The marijuana amendment, which has been enacted into law for the past two fiscal years, prevents the Justice Department and component agencies like the Drug Enforcement Administration (DEA) from spending money to interfere with the implementation of state medical cannabis laws.
An internal Justice Department memo leaked to Marijuana.com last summer revealed that in the days leading up to the U.S. House vote on the amendment in 2014, federal officials circulated “informal talking points” to Congressional offices making the case that if the amendment passed it would not only prevent enforcement against state-legal medical marijuana programs but could also “limit or possibly eliminate the Department’s ability to enforce federal law in recreational marijuana cases as well.”
Footnote from a leaked Justice Department memo revealing the existence of talking points it sent to Congress arguing against a medical marijuana amendment.
But after Congress ignored opposition arguments and approved the amendment by a bipartisan vote of 219 – 189, the Justice Department quickly changed its tune and started arguing that the measure didn’t even prevent it from going after people operating in strict compliance with medical cannabis laws. As the leaked memo put it, the argument the feds unsuccessfully tried to get Congress to buy “does not reflect our current thinking.”
In 2015, the amendment was approved again by an even stronger vote of 242 – 186. It was included in the final enacted appropriations legislation signed into law by President Obama for Fiscal Years 2015 and 2016.
Since the amendment was enacted, the department’s position has been that the measure only prevents the government from blocking states from passing and enacting their own medical marijuana laws but does not stop raids and prosecutions against patients and providers who are acting in accordance with those policies.
But last month a federal court ruled — over Justice Department objections — that the provision does in fact prohibit federal prosecutors from bringing cases against people for activity that is in compliance with state medical cannabis laws. The government has not yet announced whether it will appeal the ruling to the U.S. Supreme Court.
However, the amendment is temporary, applying only to specific years’ appropriations bills, and must be re-enacted annually. The current fiscal year ends on September 30 and there’s no guarantee that Congress will include the medical marijuana protections in spending legislation going forward. Lawmakers are currently negotiating details of both a short-term extension to keep the government funded after the end of the month and a longer-term deal for Fiscal Year 2017.
It’s easy to see why, at such a crucial time, the Justice Department would want to prevent public release of its own previous language spelling out how the impact of the medical marijuana amendment is much more far-reaching than it now argues in federal court.
Marijuana.com filed a FOIA request via MuckRock for the talking points in August 2015. After much back-and-forth communication, the Justice Department denied the request this June, saying that the two pages of materials it was able to locate are “exempt from disclosure” because they contain “certain inter- and intra-agency communications protected by the deliberative process privilege and the attorney work-product privilege.”
The site appealed the denial, citing a federal court ruling finding that “Congress is simply not an agency” of the federal government.
But in a denial of the appeal drafted on Monday, Matthew Hurd, the Justice Department’s associate chief for administrative appeals, said that the government’s initial responses to Marijuana.com’s FOIA request were mistaken and that the talking points they referenced were “only used internally.”
The Department of Justice now says it was mistaken in telling Marijuana.com that it located anti-medical-cannabis talking points previously circulated to Congress.
The Justice Department’s current position doesn’t seem to square with the leaked internal memo Marijuana.com previously obtained which says that the government did in fact share talking points with Congress in an attempt to “discourage passage of the [medical marijuana] rider.”
Marijuana.com now has the option to sue or enter into mediation with the Justice Department to resolve the dispute over releasing the documents.
