Washington’s Legal Pot Experiment: Can It Survive Trump?

In July of 2010, John Novak was weeding a flower bed in front of his house when everything went to pot. A joint task force consisting of, he says, police officers from two cities, the US Border Patrol, county sherriffs, Drug Enforcement Agency personnel, and the National Guard rolled up with guns drawn and put him in cuffs.

Novak, a big, scruffy teddy bear of a man, is a medical marijuana patient who suffers from seizures. He’d been operating a collective garden in an outbuilding, but feds thought he was a garden variety dealer. The raid came courtesy of a tip from disgruntled former friend, accusing Novak of selling drugs, exposing his minor child to drugs and, just for good measure, polluting a stream.

After getting Novak to sign an arrest warrant, the authorities sat him down on his couch, put his wife in a chair next to him, and rousted his 12-year-old son out of bed at gunpoint. Having neutralized the sleeping preteen, they proceeded to search the house and interrogate Novak.

“They realized within about 45 minutes that they’d been had,” Novak says.

Novak was lucky, he says. All his medical marijuana paperwork was in order, so things worked out OK, relatively speaking.

“I didn’t have to go to jail, they didn’t shoot my dog, nobody got killed, nothing like that,” he says, reflecting. “But at the same time, they came in and they took whatever they wanted. They still chopped down all the plants, took all our dried flower, took our medical documents.”

On the way out, Novak says he told the officers that without medicine, he’d start seizing again in a day or two. One officer, he says, grabbed a bag with about a quarter ounce of flower in it and the box containing Novak’s seeds, tossed them at him and said, “Here you go, start over.”

Novak’s tale is a reminder that, not so very long ago, growing a few plants in your shed — even if you were doing so in compliance with state law — was enough to bring down fire and brimstone from the feds. Now, three years into Washington’s experiment with legalization, that seems positively antiquated, but recent saber rattling from the Trump administration has people in the industry, and home-growers like Novak, concerned.

They wonder what the Trump administration could do to Washington’s nearly three-year-old legal weed experiment, and, on a more human level, what they could do to the people involved in it.

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Under the Obama administration, the federal government essentially pledged to not enforce its own marijuana laws, reacting in part to the recent passage of cannabis legalization initiatives in Washington and Colorado.

That commitment came in the form of a 2013 guidance document issued by then US Attorney General James M. Cole. The Cole memo, as it’s known, promised that states that legalized cannabis would not face federal enforcement if they followed eight federal priorities for enforcement — things like keeping cannabis out of the hands of kids and keeping organized crime out of cannabis.

Trump spokesman Sean Spicer, however, has promised “greater enforcement” of federal cannabis laws. Newly appointed Attorney General Jeff Sessions has reminded us that, although states “can pass the laws they choose,” cannabis remains federally illegal, and that the federal government is perfectly free to enforce its own laws.

And that has sent the legal cannabis industry into a bit of a tizzy. The cannabis news space has been a nonstop discussion of Sessions since Election Day, and that’s only intensified of late. Plenty of people in the cannabis industry are skeptical that Sessions can actually do what he’s suggesting, but plenty more are tearing their hair out, wondering if the DEA is going to show up in unmarked vans and cart their hard-earned livelihood away.

If Sessions did want to get rid of legal weed, there are a couple routes he could take, according to Alex Kreit, a drug policy expert and professor at the Thomas Jefferson School of Law in San Diego. The first is to attempt to overturn state cannabis laws using federal preemption. That, he says, might not be so easy.

“There’s a principle in constitutional law called the anti-commandeering principle, which basically says the federal government can’t force states into doing things,” Kreit says. “That anti-commandeering principle is a big part of what has allowed state medical, and now recreational, marijuana laws to move forward without being preempted by federal drug laws.”

Cannabis preemption cases have been argued fairly extensively in various courts, Kreit adds, although never in the Supreme Court. It is often the case that, in a legal-weed state, one stick-in-the-mud county will resist implementing state cannabis law by arguing that federal law supersedes it. However, Kreit says, the federal government itself has never attempted such a suit. The highest profile preemption lawsuit is probably the one brought by Nebraska and Oklahoma against Colorado, which the Supreme Court declined to hear in 2016.

If the Trump administration tried that tack again, Kreit says, “based on what courts have said so far … I think it’s unlikely that courts would side with the federal government.” However, he adds, “Until the US Supreme Court decides it, because it’s a federal constitutional issue, you can never say with certainty how it would come out.”

Kreit notes, however, that the vehemently anti-cannabis George W. Bush administration never filed such lawsuit. “I suspect that they didn’t do that because they felt like it wasn’t a particularly strong legal argument,” he says.

Washington state Attorney General Bob Ferguson, whose legal action halted Trump’s original immigration ban, has vowed to fight the feds on cannabis enforcement. But that does very little to block the second route Sessions could take in pursuing legal pot: sending in the cavalry.

“If tomorrow, the DEA wanted to go and raid a marijuana store and arrest everyone in it — including the most entry-level employee — and charge them with conspiracy to distribute marijuana, there’s very little to stop them,” Kreit says. “Federal law makes it clear that growing and selling and simply possessing marijuana for your own use is illegal, regardless of its status under state law.”

To launch a raid against a legal cannabis operation, he says, the DEA would have to get a warrant like any other law enforcement agency, but that wouldn’t be tough to do in federal court. Indeed, they could probably find all the probable cause they need by flipping through ads in The Stranger.

The fact that none of this has come to pass is thanks in no small part to the general acceptance of the Cole memo under Obama. However, as District of Nevada US Attorney Daniel Bogden recently reminded the organizers of a High Times Cannabis Cup near Las Vegas, federal prosecutors are under no obligation to honor that memo. Indeed, under Sessions, one might surmise that they are even tacitly encouraged to ignore it.

The Las Vegas letter is especially interesting because it reminds us that, while the pot industry is desperately attempting to read the tea leaves on Sessions, it might be better served by thinking local.

“We could see anything from the federal government,” Kreit notes, “from a crackdown on state marijuana laws to a policy where they keep the current situation in place to something in between. I think the ‘in between’ has been overlooked.”

Kreit points out that Trump gets to appoint every single local US attorney, and that cannabis enforcement might end up looking like a patchwork quilt. Instead of seeing raids and prosecution in every state, enforcement will likely vary based on the approach taken by the individual federal prosecutors.

Reporter Ben Adlin spelled this out last November in a piece in Leafly News that documented the aggressive anti-cannabis efforts of four California US attorneys in 2011. Their crackdown on California dispensaries came during the fairly pot-friendly Obama administration. One of the key takeaways from that, Adlin said, is that “US attorneys follow Justice Department guidelines, but they also respond to local concerns.”

In weed-loving Western Washington, prior to legalization, US attorney Jenny Durkan took a relatively hands-off approach to the proliferation of medical marijuana storefronts. On the more conservative, dry side of the state, US attorney Michael Ormsby did the opposite, coming down so hard on Spokane’s dispensaries that the entire medical marijuana community was forced underground.

“[Durkan] kind of let the floodgates go,” says Jeremy Moberg, who owns CannaSol, a large outdoor grow in Okanogan County. “Move over to eastern Washington where you have Ormsby, and it’s a very different story. We were all running scared.”

Moberg remembers, back when he was selling pot on the pseudo-legal medical market, the transition from east to west being like night and day. “In 2012, I was still bringing in weed, y’know, ‘old style,'” he says. “I was driving over here and all of a sudden we’d go from, like, completely illegal to quasi-allowed. We were so secretive over there, because the feds are funding the local sheriff that’s funding the chopper and the chopper flew last week. And now we’re at the White Center cannabis farmer’s market with bags open!”

Asked to comment on local cannabis enforcement, Sgt. Sean Whitcomb, public information officer for the Seattle Police Department, explained that the local US attorney is “a federal employee, but these are people we are connected to. We know them and work with them and they’re friends and partners. They’re part of the fabric of our community.”

Given that, Washington might be in the clear, as our communities are pretty used to pot at this point. Though Ormsby is still the Eastern District’s US attorney, he seems to be going with the flow on legalization: The majority of the state’s outdoor cultivators operate east of the Cascades, and there have been no federal raids of state-licensed pot businesses. Here in the Western District, Durkan’s replacement, Annette Hayes, has been just as deferential to the Cole memo as her predecessor.

Emily Langlie, a spokesperson for Hayes, confirmed that, as of last week, “The US Attorney’s Office continues to enforce federal drug laws consistent with applicable law and policy, including the Cole memo.”

The lack of crackdowns may be because, when it comes to Cole memo compliance, we’re doing pretty well here.

The Washington State Liquor and Cannabis Board (WSLCB) has been tight-lipped on the issue of federal intervention, saying only that its priority is to enforce all applicable state law. But at a recent meeting of the Cannabis Advisory Board, a group of industry stakeholders that advises the WSLCB on policy, Moberg says that board chair Jane Rushford characterized our state’s cannabis laws as the most highly regarded nationwide.

“She said, basically, that we’ve set the standard for legalization,” he says. “That we’ve accomplished more of the goals like generating tax revenue and overcoming the black market.”

Colorado, he adds, hasn’t generated as much revenue and has more issues with legal cannabis “leaking” across state lines.

Sessions specifically called out Cole memo compliance in his confirmation hearing, saying of the memo’s eight guidelines, “I think some of them are truly valuable in evaluating cases, but fundamentally, the criticism that I think as legitimate was that they may not have been followed.”

Given those comments, Washington’s strict enforcement and monitoring makes sense. It might seem extreme to require pot businesses to keep track of every nug of pot on the premises, but it certainly would make it hard for Sessions to argue that we’re not, as the Cole memo requests, “preventing the diversion of marijuana from states where it is legal under state law … to other states.”

Thus, the greatest danger to Washington’s cannabis industry lies largely in who Trump picks to replace Hayes or Ormsby. Though the Trump administration recently called for the resignation of 46 US attorneys who were holdovers from the Obama administration, Langlie said that the request didn’t apply to Hayes, as she stepped in as an interim rather than being officially appointed. She can still be replaced, of course, but will remain for now. Ormsby, on the other hand, is out.

Regardless, if one or both are replaced by the most anti-cannabis people possible, there’s still the practical matter of finding people to carry out enforcement. The scarcity of federal enforcement resources is something Sessions himself acknowledged, saying at his confirmation hearing, “Absolutely it’s a problem of resources for the federal government.”

And even if our new US Attorney has it in for weed, our state and local authorities might not be too keen to pursue cases against an industry that they’ve been protecting and serving for over two years.

Indeed, Sgt. Whitcomb confirmed that, although the SPD receives federal funding for its participation in a number of joint drug enforcement task forces, there is an implicit understanding that the purpose of that participation is to root out crime — that everyone involved sees as crime.

He compared the situation to SPD’s partnership with the Department of Homeland Security, which he praised as having brought some “very dangerous individuals” to justice. Although the SPD is happy to join in when hunting gun-toting heroin traffickers, it wouldn’t ever take part in rounding up non-violent DREAMers, he said.

“We will never, never go out and do immigration enforcement,” he said. “Not only is it against the culture and philosophy of the organization, but it’s also strictly prohibited by local laws.”

When it comes to cannabis, he said, “It’s exactly a parallel situation. Everyone has an understanding and everyone knows that we have our own respective lanes.”

Certainly, the federal government could attempt to coerce state and local authorities into compliance by threatening to withhold federal funds, as it did in the battle with “sanctuary cities” that shelter undocumented immigrants, but it wouldn’t exactly have an energized base cheering it on. A majority of Republicans now support cannabis legalization.

***

Beyond the considerable obstacles outlined above, there’s a law that prohibits the federal government from using any of its resources to pursue enforcement against state-law-compliant medical marijuana businesses. The law is a bit of language in our current appropriations bill called the Rohrbacher-Farr amendment, and it likely protects most of the state’s cannabis businesses: Washington’s Cannabis Patient Protection Act folded our state’s MMJ industry into the legal one; if a store has a medical endorsement — and most of them do — it is technically a medical marijuana dispensary.

While Rohbacher-Farr expires at the end of April, even a Republican controlled Congress may want it renewed. Members of the new, bipartisan Cannabis Caucus are advocating for sensible cannabis policy on a federal level. And several Republican Senators from legal states recently shared that Sessions had privately promised them that no crackdown was forthcoming.

What if he breaks that promise? As Lena Davidson, marketing manager for Seattle cannabis processor Botanica Seattle, put it, raids would mean sending “uniformed officers into drab business parks to extract document boxes from well-organized, vigilantly-compliant, licensed facilities run by people who really like the challenge of making something work.”

More likely, busts will focus on communities of color and small-time medical marijuana growers, populations that fit well with the feds’ love of painting medical marijuana as a cover for recreational sales. Any immigrant whose status depends on their criminal record might also have cause to worry if they work with cannabis, even in the state-legal system.

However, in the case of the mostly white Washington cannabis industry, people aren’t exactly closing up shop for fear of the feds.

“At Ike’s it’s totally business as usual,” says Ian Eisenberg, the outspoken owner of the Uncle Ike’s chain of pot shops. “I’m pretty old, and while I don’t know much, I’ve learned there is no point in worrying about something you have no control over.”

Alex Cooley, owner of Solstice Group, a Seattle cannabis producer, adds that the paranoia is most prevalent among “newer folks who have never experienced the type of elevated blood pressure I have. … It’s not that I’m used to this, but I’ve played in this water before.”

By his estimation (and, he adds, his lawyer, former US Attorney John McKay), the federal government isn’t actually interested in coming after Washington’s state-licensed businesses. If anything, he thinks their tough talk is intended to push Congress to take action on the matter. He dismisses Sessions’ comments on compliance as being primarily directed at California, where multi-million dollar cannabis grows are currently operating in something of a regulatory void.

However, he admits, that while enforcement might be improbable, it isn’t impossible.

“If it went bad, it would all go really, really bad,” he says.

“A raid would be shocking — an insult to our work and an affront to our democratic process,” Davidson says, reflecting on the possibility. “Did I mention it would be terrifying?”

However, both Moberg and Cooley surmised that state-licensed businesses are more likely to see letters than actual law enforcement officers. Kreit corroborates that, saying that the federal government has used civil suits to shut down state-legal medical marijuana businesses in California before.

Though it’s not quite as personally devastating as having your house ransacked by federal agents, as John Novak did, legal cannabis entrepreneurs and their employees still have a lot to lose via civil enforcement. The cannabis industry has become a source of dependable employment for thousands in Washington. For most, there’s no mystique or danger in the industry anymore, just a stable source of income.

This article originally appeared on Crosscut.com, an online news organization committed to helping make the Northwest a model for sane and sustainable 21st century living.