Washington, D.C. -- The 85 words almost seemed an afterthought when Congress hurriedly crammed them into a massive budget bill late in the Obama administration, as if lawmakers wanted to acknowledge America’s outlook on marijuana had changed, but not make a big deal of it.
Almost three years later, a multibillion-dollar industry and the freedom of millions to openly partake in its products without fear of federal prosecution hinge on that obscure budget clause. But now, Congress may throw it overboard amid pressure from an attorney general who views marijuana as a dangerous menace.
What has become known as the Rohrabacher-Farr amendment constitutes a single paragraph of federal law. It prohibits the Justice Department from spending even a cent to prosecute medical marijuana users and sellers operating legally under state laws. Since its passage, it has largely shut down efforts by federal prosecutors or drug enforcement officials to interfere with otherwise legal sales of marijuana in 29 states and the District of Columbia that have passed legalization measures.
The prospect that the ban on prosecutions could expire has spread anxiety across the marijuana industry.
In California, the freedom of an attorney facing jail time for advising a marijuana operation hangs in the balance. In Washington, a pro-marijuana GOP congressman ponders whether to use the White House access he has gained to enlist President Trump’s help preserving the pot amendment.
Pot sellers and patients wonder if federal raids are next.
“It is shocking to think that this is at risk,” said Sarah Trumble, deputy director of social policy and politics at Third Way, a centrist think tank that advocates easing federal restrictions on cannabis.
“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.”
The first big sign of trouble for pro-marijuana advocates came in September, when the House balked at preserving the amendment. GOP leaders refused to allow a vote on it in a committee chaired by Rep. Pete Sessions (R-Texas), who is no relation to Atty. Gen. Jeff Sessions, but is as fiercely anti-marijuana.
The Senate has already reaffirmed its support for the provision in an affront to its former colleague, the Sessions who runs the Justice Department. But both houses must agree for the measure to remain in effect.
The hedging in the House followed an aggressive lobbying campaign by the attorney general, who complained in writing to lawmakers that the Rohrabacher-Farr amendment was hampering law enforcement and endangering the public.
“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,” Sessions wrote.
The uncertain fate of the pot provision has created tension among Republicans, dozens of whom have cast votes to prevent the federal government from a crackdown on medical marijuana. Many would like to do so again.
The most vocal is Rep. Dana Rohrabacher of Costa Mesa, the amendment’s namesake, who along with former Rep. Sam Farr, a Democrat from the Central Coast, got the ban into federal statute in 2014 after trying for a decade.
That victory wasn’t long ago, but came during a very different time. The Obama administration had just pledged to let states go their own way on medical and recreational pot. The measure reflected a Congress subtly backing off its war on marijuana and nudging the Justice Department to do likewise.
After it passed, Rohrabacher began calling judges to insist they dismiss cases.
“I told one of 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,’” he said.
The 9th Circuit Court of Appeals in San Francisco last year put the Department of Justice on notice that as long as the prosecution ban is in place, marijuana charges filed against defendants operating legally under state law won’t fly, at least in California and the eight other western states under the appeals court’s jurisdiction, all but one of which have legalized marijuana in whole or in part.
Sessions warned in his letter to Congress that the ruling threatened to immunize drug runners and gangs.
Rohrabacher finds such claims absurd. The attorney general, he said, is out of step with the president, who has expressed support for medical marijuana. Rohrabacher insists Trump would step in to protect medical pot if someone could get him to focus on what is going on.
The congressman, who is a strong Trump supporter, is potentially a good candidate to do that. But like so many other things around pot politics – and the Trump administration -- the dynamics are complicated, and strange.
Rohrabacher said he doesn’t want to “mess up … something really important to the president” that he’s working on by throwing marijuana into the mix.
Rohrabacher wants to broker a deal between the Trump administration and Julian Assange, the fugitive founder of Wikileaks. According to Rohrabacher, Assange told him he has “absolute proof” that emails stolen from Democratic operatives during last year’s campaign did not come from the Russians.
“That is proof he will provide if we can work something out so Assange leaves the Ecuadorian embassy” in London, where he has taken refuge for more than five years, Rohrabacher said. Assange’s evidence would “disprove the accusation that our president stole the last election in cooperation with Russia,” he asserts.
Much of the rest of Washington is skeptical, and White House officials have kept Rohrabacher away from Trump.
Meantime, the dalliance with Assange isn’t keeping lawmakers from working with Rohrabacher on pot. His most prominent partner is his otherwise political opposite, Rep. Earl Blumenauer, a liberal Democrat from Portland, Ore., who is co-sponsoring the latest version of the Rohrabacher amendment.
“There are dozens of Republicans who realize this is a really bad political move,” Blumenauer said, referring to Sessions’ effort to block the amendment.
“Marijuana got more votes than Trump. There are millions of Republicans and independents who voted for it. There are 20 million people a month who use it.”
Both Blumenauer and Rohrabacher said they know how many lawmakers have reconsidered their support for the prosecution ban amid lobbying by Sessions.
“None of them,” said Rohrabacher.
That’s all cold comfort to Troy Dayton, co-founder of ArcView, a San Francisco group that connects deep-pocketed investors with promising cannabis startups. The prosecution ban has been a boon to business. The stalling in the House, Dayton said, was another wake-up call to the marijuana industry that anything can happen at any time.
“It was revolutionary when it passed,” Dayton said of the ban. People were skeptical at first, he said, asking whether it would really halt prosecutions. “For the most part, it has,” he said.
The impact if it were to vanish?
Perhaps even more so for Nathan Hoffman, a lawyer facing prison time and disbarment for his role advising a large marijuana growing and sales operation that was busted in 2011. The recent court rulings give Hoffman’s attorney, Ronald Richards, hope that Hoffman’s law license and freedom can be saved.
“In a brief I field last night, I said why are they in a rush to disbar my client and convict him when these prosecutions are becoming archaic?” said Richards.
But if the ban goes up in smoke, that argument likely goes along with it.