As the Washington Post reports secret DOJ memo from February has been obtained by Tom Angell at marijuana.com which now demonstrates that the DOJ misled Congress about the effect of an appropriations rider that ostensibly prohibits the DOJ from prosecuting marijuana cases where the defendant is using, cultivating or dispensing marijuana as part of a state's medical marijuana scheme. The DOJ memo now contends that the prohibition on spending money to prevent states from implementing marijuana schemes only prevents DOJ from prosecuting "states" not individuals or dispensaries. But the memo acknowledges that the DOJ lobbied Congress to kill the bill, by arguing that it would prevent the DOJ from prosecuting individuals and could also hamper recreational marijuana prosecutions.
More below the orange smoke
As I diaried in April, in December, 2014, Congress passed a funding bill (CR Omnibus) with an amendment proposed by Rep. Dana Rohrabacher and Dem. Sam Farr from prohibiting the Justice Department from spending any money in 2015 to prevent states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."
As I later pointed out, a Justice Department spokesman told the Los Angeles Times that the restriction on medical marijuana enforcement does not apply to individual cases like proceedings against three dispensaries in the San Francisco Bay Area. (This statement was apparently based upon the newly obtained memo).
This prompted swift reaction from Reps. Rohrabacher and Farr, who sent a letter to the DOJ stating that the DOJ's interpretation was "emphatically wrong."
More recently, Reps. Rohrabacher and Farr sent a letterto the Inspector General asking for an investigation of DOJ officials who continue to spend money in violation of the appropriations limitation. A government employee who spends money without legal authority is committing a violation of the "Anti-Deficiency Act," punishable as a felony with up to 2 years in prison. As the Congressmen wrote,
[the DOJ's] interpretation is clearly a stretch.
The implementation of state law is carried out by individuals and businesses as the state authorizes them to do. For DOJ to argue otherwise is a tortuous twisting of the text ... and common sense."
Now, it appears that the DOJ's interpretation and their defense of ongoing dispensary prosecutions is not only a "stretch" and a "tortuous twisting of the text," but the exact
opposite of what the DOJ
told Congress when Congress was considering passage of this appropriations limit. The DOJ's talking points to Congress warned that the appropriations limitation would not only prevent the DOJ from prosecution, but for states that permitted recreational marijuana, it could "in effect, limit or possibly eliminate the Department’s ability to enforce federal law in recreational marijuana cases as well."
The DOJ is going rogue.