William Barr, President Trump’s nominee to serve as the next U.S. attorney general, made headlines earlier this month when he pledged during his Senate confirmation hearing not to “go after” marijuana companies that comply with state laws.
Now, in response to written questions from senators, Barr is putting that pledge on paper, in black and white. He’s also calling for the approval of more legal growers of marijuana for research, and is acknowledging that a recent bill legalizing hemp has broad implications for sale of cannabis products.
“As discussed at my hearing, I do not intend to go after parties who have complied with state law in reliance on the Cole Memorandum,” he wrote, referring to Obama-era cannabis enforcement guidance that then-Attorney General Jeff Sessions rescinded last year.
That said, Barr isn’t committing to formally replacing the Cole Memo, which generally directed federal prosecutors not to interfere with state marijuana laws, with new guidance reiterating the approach.
“I have not closely considered or determined whether further administrative guidance would be appropriate following the Cole Memorandum and the January 2018 memorandum from Attorney General Sessions, or what such guidance might look like,” he wrote in response to a question from Sen. Cory Booker (D-NJ). “If confirmed, I will give the matter careful consideration.”
And Barr, who previously served as attorney general under President George H. W. Bush, says it would be even better if Congress got around to addressing the growing gap between state and federal marijuana laws.
“I still believe that the legislative process, rather than administrative guidance, is ultimately the right way to resolve whether and how to legalize marijuana,” he wrote in a compilation of responses delivered to the Senate Judiciary Committee on Sunday.
But even as Barr reiterated that he wouldn’t go after people and businesses that benefited from the Cole memo, he voiced criticism of policy directives like it and of the idea of legalization in general.
“An approach based solely on executive discretion fails to provide the certainty and predictability that regulated parties deserve and threatens to undermine the rule of law,” Barr wrote in response to a question from Sen. Dianne Feinstein (D-CA). “If confirmed, I can commit to working with the Committee and the rest of Congress on these issues, including any specific legislative proposals. As I have said, however, I do not support the wholesale legalization of marijuana.”
Nonetheless, legalization advocates were happy to see the nominee reiterating his non-enforcement pledge when it comes to state-legal businesses.
“It’s positive to see Barr make the same commitments on marijuana enforcement in writing as he did in the hearings,” Michael Collins, director of national affairs for the Drug Policy Alliance, said. “My hope is that he sends this message to all federal prosecutors so that states are given space to reform their outdated, broken, racist marijuana laws, and the country can turn the page on prohibition.”
Elsewhere in the 247-page document, Barr says that he supports expanding the number of institutions that are allowed to grow marijuana to be used in scientific research.
“I support the expansion of marijuana manufacturers for scientific research consistent with law,” he wrote in response to a question from Sen. Charles Grassley (R-IA). “If confirmed, I will review the matter and take appropriate steps.”
A single facility at the University of Mississippi has for half a century maintained a monopoly on the cultivation of cannabis for research, but due to concerns about the availability and quality of its products, the Drug Enforcement Administration in 2016 announced a process to license additional manufacturers. However, under Sessions, the Department of Justice has blocked the agency from acting on any of the several dozen applications it has received from would-be growers.
“I am not familiar with the details of these applications or the status of their review,” Barr wrote. “If confirmed, I can commit to reviewing the matter.”
Barr also acknowledged that, due to the passage of the Farm Bill and its hemp legalization provisions late last year, hemp-derived cannabidiol (CBD) and other components and products made from low-THC cannabis plants are legally distinct from those that come from marijuana.
“Products derived from hemp, including CBD, are therefore subject to different legal and regulatory restrictions than those derived from non-hemp marijuana plants under certain circumstances,” he wrote.
He also pledged to “look into” pending medical and scientific evaluations of CBD, which could lead to its formal rescheduling under the Controlled Substances Act.
All told, the cannabis comments indicate that if Barr is confirmed by the Senate, the Justice Department would be poised to take a very different approach to marijuana issues than it did under Sessions, who has long been a vocal legalization opponent.
“After decades of failed drug war, it’s difficult to grasp the progress we’ve made in just the past couple of years. From a hawkish attorney general who sent a chill through the industry and threatened to escalate enforcement to a nominee who put his hands-off federalist approach to prohibition in writing,” said Don Murphy, director of federal policies for the Marijuana Policy Project. “William Barr didn’t just wave the white flag, he signed a peace agreement.”
NORML Political Director Justin Strekal said Barr is “incredibly wise to acknowledge that the genie is out of the bottle when it comes to the marijuana reform movement.”
“Now is the time for the Department of Justice to work in good faith with the Senate Judiciary Committee on legislative solutions that address the senseless waste of law enforcement’s precious time and resources due to the failed federal policy of prohibition,” he said.