Las Vegas Sun

March 29, 2024

Q+A: Expert not expecting Trump to crack down on legal marijuana

Desert Grown Farms Cultivation Facility

Steve Marcus

Armen Yemenidjian looks over marijuana plants at a Desert Grown Farms Cultivation Facility in Las Vegas, Dec. 15, 2016.

With millions of dollars hanging in the balance, supporters of Nevada’s marijuana industry have been watching Jeff Sessions with wary, worried eyes since he was confirmed as U.S. attorney general last month.

At issue is whether Sessions, a vehement opponent of marijuana, will attack the industry by aggressively enforcing federal pot laws. Although Nevada voters have approved legalization of both medicinal and recreational use of the drug, the federal government could snuff out legal pot by rescinding the Obama-era Justice Department policy of taking a hands-off approach in states that met certain criteria, such as keeping the drug out of the hands of children.

John Hudak, a senior fellow at the Brookings Institution, has been watching Sessions carefully, too.

Shortly after Sessions’ confirmation, Hudak wrote a report examining what could be in store for the marijuana industry under the new A.G.’s administration. In it, he steered away from making a prognostication and instead examined reasons why Sessions and President Donald Trump might or might not crack down on the industry.

Click to enlarge photo

John Hudak is a senior fellow at the Brookings Institution

“The reality is this: No one knows what marijuana policy will look like under the new administration,” Hudak wrote. “And if the past year has taught us anything about American politics, it is this: When it comes to Donald Trump, don’t lob predictions.”

Hudak said that in the last month, however, there had been indications of where the administration might be heading on the issue.

During a visit to Las Vegas, Hudak offered a status report in a March 15 interview with the Sun. Excerpts from the interview follow:

In your report from mid-February, you recommended that instead of listening to the messages that were coming out of Washington, D.C., people should watch for the actions. Over these last four weeks, have you seen any actions that indicate how the Trump administration will act on marijuana?

When you look at the capacity of the federal government to affect marijuana policy at the state level, it's quite tremendous. And so when you hear the attorney general or the White House press secretary and others talk about marijuana policy, I think it gives pause to a lot of people in industry and the advocacy movement, patients and consumers.

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But the reality is that there has not been any action on this. The day Jeff Sessions became attorney general, he could have rescinded the Cole and Ogden memos. The Treasury secretary could have rescinded the memo that has given cover to marijuana firms across the United States to have access to banking. And that hasn't happened, which suggests that the administration is not that committed to turning the marijuana industry upside-down.

I think the initial counter to that is, well, this is a big industry, it's a complicated area of policy, and if you're going to do something about it you have to take the time and think through what the implications are. But we've seen this administration rush on immigration policy and on a repeal and replace of the Affordable Care Act, which is probably the most complex and challenging area of policy that this administration will take on. And they effectively did that in four or five weeks. Marijuana is much easier than health care, and when you consider that the Justice Department, the Treasury Department and other federal entities have not changed course so far, I think suggests that there's not going to be a huge change of course moving forward.

Is it possible the administration is just putting marijuana on a back burner for a year or two to get through some of those bigger initiatives that you were talking about?

I think most administrations can walk and chew gum at the same time. And the individuals who are overseeing marijuana policy in the United States are very different than the individuals who would necessarily oversee a lot of these other areas of policy with the exception of immigration. There's a lot of overlap at Justice, in U.S. attorney's offices, in the FBI and even the DEA.

But it's easy for the government to do both if it wanted to do both, and it hasn't. The challenge for the administration if it truly does want to upend the marijuana industry is the longer you push that movement back, the harder it is to get ahead of the industry.

So let's say they decide they’re going to deal with marijuana policy, really crack down, but will wait until after the midterm elections. Well, after the midterm elections, California, Nevada, Massachusetts and Maine will all have commercial sales — they will have a fully regulated system. California will have fully regulated its medical system. There is a chance that other states, particularly a couple of Northeastern states, will move forward with recreational marijuana reform at the legislative level instead of the ballot initiative process, so you could see many more states coming online. On the medical side, you're going to have the four states that legalized medical marijuana in 2016 coming online, and laws changing at the state level through the legislative process.

So pushing that off until 2019 just creates bigger policy hurdles for the administration. I think every day that goes by, it's less and less likely that the administration has the capacity to rein this in, because every day that goes by this industry grows.

One of the points you made in the mid-February report was that we should be watching for some of the federal appointments, particularly of U.S. attorneys. Have you started to see any of those?

We haven't. We saw all of the U.S. attorneys get fired and so that frees up a lot of appointments for the president. When you look at who will be the U.S. attorney for Colorado, for Washington, for the districts in California and elsewhere, those will be important choices.

We haven't seen any drug warriors who are stronger than Jeff Sessions get appointed so far. And I think that is positive for those who support marijuana reform or those who live in states who want those states' choices to be respected. But the president has not been appointing many people, and because of that there's still a lot of work to be done.

The nominee for FDA is someone who comes from the pharmaceutical industry; I think that worries people in the medical marijuana community. But it's not clear that FDA can be that much more hostile to medical marijuana than it has been so far. There are certainly some things the FDA can do, but the pick doesn't strike me as someone who's going to flex those muscles.

Yet Sessions is still making comments indicating he strongly opposes marijuana. Why do you think that is if we're not really moving forward in any kind of aggressive manner.

I think a lot of this boils down to an unfortunate but simple reality, and that is that Jeff Sessions is a very ignorant man when it comes to drug policy. And he's also someone who's very comfortable in his own ignorance, meaning he does not want to learn what exists outside of his pre-existing worldview.

So his comments on what the marijuana industry is like in the states are very different than the reality of what the marijuana industry is like in the states, so much so that Cynthia Coffman, the attorney general of Colorado — a conservative Republican, someone who's a staunch opponent of legalization in Colorado — has said she would invite the attorney general to come to Colorado and see what they are doing. He might hate it still, but he would at least understand how it works. He doesn't understand that right now.

His comments earlier today in Richmond, Va., where he said that marijuana dependence is "only slightly less awful than heroin dependence," is false by any standard, any metric, any scientific or medical standard that you would apply to the magnitude of challenges around addiction. if you went to the average American and said, "Your son or daughter is going to have a substance abuse problem. Would you rather them have a marijuana addiction or would you rather them be addicted to opioids?" I don't know an individual in the country who would pick opioids over marijuana. You don't want anyone addicted to something, but the idea that marijuana is only slightly less awful just doesn't jibe with the average American's perspective.

I think that creates a serious problem for the attorney general's legitimacy on this issue, not to the advocacy community necessarily but to Joe Smith in Middle America, an average Trump voter, who maybe lost a son or daughter to opioid overdose or maybe knows the family across the street who did. That isn't consistent with their worldview, and that's a real challenge.

Speaking of opioid addiction, you made a point about how, if there is an initiative at the federal levels to get our arms around the opioid addiction problem, that could affect any push toward reining in the medical or recreational marijuana industry. Can you expand on that a bit?

The enforcement of the nation's drug laws tends to flow through similar channels regardless of what drug you are talking about. The Drug Enforcement Administration is the main law enforcement tool in the United States to enforce the nation's drug laws. It's true for marijuana, for opioids, for cocaine, for everything.

There are often times DEA will work in conjunction with the FBI. The prosecutions of these cases will run through the U.S. attorney's office in that district, whether you're getting arrested for trafficking marijuana or trafficking fentanyl. And because of that, when an enforcement demand grows, oftentimes the funding to enforce does not. And while we've seen increases in funding for drug enforcement entities in the U.S., the pace of the opioid crisis has far outpaced the growth in budgets.

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So U.S. attorneys, the attorney general, the DEA, the FBI have to make choices about how they're going to use a fixed set of funds.

I think if you tell someone the Department of Justice has between $25 billion and $30 billion a year to fund itself, most people would say, "That's a lot of money." But when you think about the nearly 30,000 people who work in the Department of Justice that every criminal prosecution in the United States, every civil lawsuit filed by the United States government or for which the U.S. government is a party comes out of DOJ with very few exceptions, that money goes fast. Plus, part of what a Department of Justice does is respond to the criminal and civil challenges that exist in the United States, but it's also a political entity.

And when the attorney general looks out at the law enforcement landscape in the U.S., he has to think about what he should do and what he needs to do politically for he and for his president. And the opioid crisis is something right now that affects every county in the United States. It's not a clustered issue, and it's something that's really hurting Trump's America — the counties and states that Donald Trump won. And you don't want to think about the enforcement of the nation's drug laws as a necessarily political thing, or that you get political benefit out of the way you approach enforcing drug laws, but you really can. And I think that if the president and the attorney general focus all of their attention on the marijuana industry and ignore the opioid crisis and it keeps getting worse, there will be political consequences for the president, and it's something that he seriously needs to consider when he's talking to his attorney general about drug policy.

Have you seen anything out of the president himself that would give you any indication as to where things are heading?

I haven't, really. The White House has been a bit opaque on this, and I think that's true in a lot of areas. I do think, however, the president has lived a life full of experience. He's lived in New York most of his life. He has been around drugs for sure. I think he knows in terms of experience people who are marijuana users. He certainly knows people who are cocaine users. He probably knows people who have been affected by opioids.

And I think when he thinks about the challenges that those create, he can also connect that with his own life. His brother, who was a serious alcoholic, who died prematurely because of alcoholism, is something that weighs heavily on the president. It's something that has affected the president's own behaviors. By all accounts, he's someone who has not consumed alcohol in his life, not because he necessarily doesn't like alcohol itself but because of what his brother went through. He's sworn it off. He's someone who knows the darkest challenges that addiction can cause. And I think that there are two responses to that. One could be that all drugs are bad, marijuana is bad, so we need to get rid of it. But the other is that when he hears or sees stories or he sees news reports about what opioids are doing in the U.S., that brings him back to his own experience with his brother. I don't think the discussion of legalization of marijuana necessarily does that. It doesn't invoke the memory of his own experience with his brother's addiction in a way that opioids would.

And so I think that for a lot of people, they look at the president and they don't necessarily see someone who connects on an everyday level with everyday Americans' experience — billionaires tend not to — but this is one area where I really think he can. This puts him on the same par as someone whose son just overdosed on heroin. And if he uses that experience to inform drug policy, I would expect him to come down very hard on opioids and less so on marijuana. Of course, that's guessing the president's motives and interests, and that's dangerous to do, but like I said, we don't know a ton about the president's personal life. But we know this, and I think it can be pretty informative.

What would be your advice to someone in the industry in Nevada about how to move forward?

My advice would be not to take anything for granted. There is still an opportunity for the president, for the attorney general, for a rogue federal prosecutor, whoever becomes the next U.S. attorney for the district of Nevada, to really cause challenges for the marijuana industry.

I speak at a lot of conferences and I talk to a lot of people in this space from time to time, and people's responses are all over the place. There are people who think absolutely we're going to get slammed; we're in a really bad place. And there are other people who think we're untouchable as an industry. Neither of those are right. The untouchable thing is extraordinarily worrisome to me in terms of reality. The president is about to wreak havoc on the health care industry, which is much bigger and much more powerful than the marijuana industry, and I think that should create a moment of pause for people in the industry.

That said, the president has a lot of other priorities. There are a lot of other areas he's interested in. And for someone in the industry, I think they need to think about preparing themselves for what might come next, whether that is talking with lawyers about what legal defenses might be, talking with regulators or state officials about how to move forward or how to defend state-level reforms, but also how to deal with investors, how to deal with consumers.

Overall based on what we saw in the last election, do you sense there's been any change in the political will and the movement toward embracing marijuana more as an industry?

I do think that most people who experience the marijuana industry come away with a different impression of this caricature of it. Most people who've not interacted with the marijuana industry think tie-dye shirts and dreadlocks and all kinds of stereotypes. But the reality is the marijuana industry is a suit-and-tie enterprise. And that helps normalize this industry when people experience it.

As the industry grows, more people have contact with it, whether it's directly as a consumer or indirectly as an observer, and that certainly helps boost support or minimize opposition. I think the passage of eight statewide ballot initiatives on medical and recreational marijuana in 2016 marched that progress forward.

The challenge for the industry and for the advocacy community is while support for medical and recreational marijuana is robust and growing, it's also an inch deep. So support for marijuana reform, while it's over 60 percent for recreational and over 80 percent for medical, is not a top 20 issue for most Americans. And if it ends up on the chopping block, it's not something that a lot of Americans are going to stand up and scream about.

There will be people in the advocacy community and patients and consumers who will, but that's still a small portion of the population. It's not like what you're seeing around women's rights and racial justice and immigration and health care right now. Those are top-tier issues; marijuana isn't.

So I think when people point to public opinion around this issue, they should not think only about support but for the intensity of that support. And for marijuana, those are two polar opposite things.

What else is happening on this issue that you feel is important at the moment?

I will say right now there's so much attention paid to what will Donald Trump do next. What will Jeff Sessions do next? Is this going to be an industry in four years?

But the public conversation is ignoring what is happening at the state level — what states are doing around implementation, what counties and municipalities are doing around implementation. Yes, the federal government can wreak havoc on the marijuana industry, or it can really allow the industry to flourish. That's minor compared to what a state or a municipality can do to help or hurt the industry.

So the constant conversation about federal policy is important, but if it ignores what the Sandoval administration or the Brown administration or the LePage administration are doing around this issue, the point is really being missed. Colorado has had a very successful recreational marijuana program in part because the Holder Justice Department issued a memo that allowed them to do it, but in large part because the Hickenlooper administration was masterful in implementing this and going back and addressing issues. The Inslee administration in Washington the same, really working hard to get this right. If people in states stop paying attention to what states are doing, that will be a bigger crisis for the marijuana industry than what Donald Trump or Jeff Sessions does.

Editor’s note: Brian Greenspun, the CEO, publisher and editor of the Las Vegas Sun, has an ownership interest in Essence Cannabis Dispensary.

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