Washington ready to defend state's legal pot amid expected DOJ crackdown

VIDEO: The battle over legal pot

Washington Attorney General Bob Ferguson is ready to defend the will of his state’s voters after White House press secretary Sean Spicer suggested Thursday that Donald Trump’s administration may crack down on states with legalized marijuana for recreational use.

In his daily news briefing, Spicer said the Justice Department will step up enforcement of federal law against recreational marijuana.

>> Related: White House expects Justice crackdown on legalized marijuana

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Ferguson, who also led the states in challenging Trump's executive order on immigration, noted in a statement that he and Gov. Jay Inslee, both Democrats, previously were prepared to defend the state's legal marijuana system.

Ferguson and Inslee sent a letter last week to new Attorney General Jeff Sessions to request a meeting on the topic. Read it in full here.

Washington state voters legalized marijuana nearly four years ago.

When it passed, the U.S. Attorney General's office promised to take a hands-off attitude, as long people in Washington State kept it away from children and kept locally grown marijuana from crossing state lines. Under a new attorney general that could change, as selling it still remains a crime under federal law.

Enforcement would shift away from marijuana policy under the Obama administration, which said in a 2013 memo that it would not intervene in state's marijuana laws as long as they keep the drug from crossing state lines and away from children and drug cartels.

The Justice Department has several options available should it decide to enforce the law, including filing lawsuits on the grounds that state laws regulating pot are unconstitutional because they are pre-empted by federal law.

During a Seattle panel about presidential power in modern politics in early February, criminal law expert and University of Washington professor Trevor Gardner explained to a room full of hundreds of people that he believes tackling local marijuana laws will be difficult for the federal government.

Here are some of those points.

  • The federal government does not have ability to direct state and local police
  • Of 1.2 million law enforcement agents, only 80,000 are operating at federal level, which means in order for federal government to broadly enforce marijuana prohibition it needs to cooperation of state and local police. The DOJ prosecutes after arrests have been made by state and local police. 
  • In the event Sessions does not have that cooperation, it will be difficult for them to prosecute and enforce the marijuana prohibition broadly in decriminalization states.         

Watch Gardner speak at the 25-minute mark.

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Eight states and Washington, D.C., have legalized marijuana for recreational use. Twenty-one states have decriminalized marijuana. This means certain small, personal-consumption amounts are a civil or local infraction, not a state crime.

"[Sessions has] taken the Obama administration to task by name and mentioned Obama, attorney generals -- Loretta Lynch and Eric Holder -- as well as FBI Director James Comey saying they have all [failed] to enforce federal marijuana prohibition in criminal decriminalization states," Gardner said.
"I do think the federal government, the Department of Justice, and Jeff Sessions are going to be very aggressive about prosecuting marijuana production, distribution, and decriminalization states … This is not going to be an easy task for the government."

Before his confirmation for U.S. attorney general, Sessions openly said during a Senate drug hearing last year that "good people don't smoke marijuana" claiming the drug is dangerous. According to the Washington Post, Sessions' former colleagues testified years ago that he used the n-word and joked about the Ku Klux Klan, saying he thought they were "okay, until he learned that they smoked marijuana." Sessions denied the accusations.

Thursday’s announcement is the Trump administration's strongest indication to date of a looming crackdown on the drug, even as a solid majority of Americans believe it should be legal.

Spicer said during the news conference on Thursday that President Trump “understands the pain and suffering that many people go through who are facing especially terminal diseases, and the comfort that some of these drugs, including medical marijuana, can bring to them.”

But, according to Spicer, medical marijuana use is “very different than recreational use, which is something the Department of Justice will be further looking into."

He offered no details about what such enforcement would entail.

Washington's recreational marijuana sales passed the $1.1 billion mark with sales tax revenue reaching $410 million in 2016.