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Trump AG pick could halt legal pot industry

Senator Jeff Sessions.EPA/MICHAEL REYNOLDS

WASHINGTON — Donald Trump’s nominee for attorney general, who has a long history of hard-line opposition to marijuana, could unravel the burgeoning recreational marijuana industry across the country, including in Massachusetts.

Senator Jeff Sessions, a former federal prosecutor and Alabama attorney general, has been taking on marijuana dealers since the 1970s.

He said earlier this year that “good people don’t smoke marijuana” and “we need grown-ups in charge in Washington to say ‘marijuana is not the kind of thing that ought to be legalized.’ ”

Because marijuana remains illegal under federal law, Sessions, if he is confirmed, could choose to order targeted prosecutions of recreational marijuana farms and shops that are operating legally under state law. Such a move could seriously threaten the retail marijuana industry, worth a billion dollars in Colorado alone.


The Obama Justice Department has chosen not to enforce statutes in that way, legal specialists say, effectively allowing the recreational marijuana industry to blossom in several states.

It is unclear what, exactly, Sessions would do. With its limited resources, it seems unlikely the federal government would pursue smaller cases, such as those involving personal use and possession or medical marijuana, analysts say.

But the Sessions Justice Department could target other cases.

“A few high-level prosecutions, send some threatening, saber-rattling letters out to business owners, and that would probably have that chilling effect. Not only on individuals who are looking to get involved as marijuana business leaders,” said Robert J. Capecchi, director of federal policies at the prolegalization Marijuana Policy Project.

It could also deter policy makers in states like Massachusetts and Maine looking to implement just-passed legalization referenda, he said.

Capecchi, echoing those in the industry, said he hopes and expects Sessions would focus on issues other than working to undermine the recreational industry if the Senate confirms him as the country’s top law-enforcement official.


And he pointed to comments from Trump on the campaign trail saying legalization of recreational marijuana should be up to each state.

Capecchi, a lawyer, said it would be surprising if Sessions chooses a different path.

In October, Trump said, “In terms of marijuana and legalization, I think that should be a state issue, state-by-state,” according to news reports. But the president-elect’s position on drug policy has shifted over time. (He was calling for the legalization of drugs in 1990, for example.)

The prospect of Sessions going after marijuana businesses that are legal under state law is setting off alarm bells among Massachusetts politicians.

“The possibility that the federal government will change its existing policy on criminalizing marijuana concerns me,” House Speaker Robert A. DeLeo said in a statement. “I don’t want to see the Commonwealth’s law-abiding citizens confused by conflicting policies or put at risk when they have acted in good faith by obeying Massachusetts law.”

Still, DeLeo and other Massachusetts officials say they are plowing ahead with implementing the will of the voters. Question 4 passed with more than 1.7 million votes.

“We are continuing to move forward as the new law requires us,” Treasurer Deborah B. Goldberg, who will oversee the new industry, said in a statement. “We have no intention of changing course at this point, but will closely monitor the federal government’s view on states authorizing the recreational use of marijuana.”


Sessions’ ability to go after marijuana businesses is crystal clear, given that federal law has supremacy over state law, specialists say.

New York lawyer Marc J. Ross, who teaches about the intersection between state and federal marijuana law, said the federal government currently abstains from enforcement of certain parts of federal law through a memorandum issued by a top Justice Department official in 2013.​

Robert Bukaty/Associated Press

That document, known as the Cole Memo, sets enforcement priorities for federal prosecutors, such as preventing revenue from the sale of marijuana from going to cartels, and preventing violence in the drug’s distribution.

But those priorities do not include prosecuting marijuana businesses operating in legal, regulated markets under state law, which, Ross and other experts said, has given the recreational market room to grow.

“But if Sessions removes that memorandum, the effective protections that exist for marijuana businesses in legal marijuana states instantly go away,” Ross said.

The tension between federal law and the law in states where voters have legalized marijuana for recreational use created a practical problem for the Obama administration, said Charles Fried, a former solicitor general of the United States and longtime Harvard Law School professor.

The Obama administration has chosen to solve it through nonenforcement, he said.

But “somebody who is indicted, prosecuted, and convicted has no defense by saying, ‘It’s legal on the ground in Colorado!’ Now you may have a hard time getting a jury to convict, and it may be extremely unpopular, and it may be a bad idea,” he continued, “but as a legal matter, it’s clear cut.”


Still, say prolegalization lawyers like Capecchi, the Department of Justice can’t force state lawmakers to recriminalize marijuana possession, use, and cultivation. And the Department of Justice going after businesses legal under state law, they argue, would only succeed in driving the currently regulated industry back to the criminal market.

Should a Sessions Justice Department step up prosecutions, the effect on Massachusetts’ nascent retail industry could be swift, drying up funding for retail marijuana endeavors.

And no matter what the impact on the retail marijuana market here, the state ballot initiative legalizes home growing, possession, and use for those 21 and older on Dec. 15.

“The short answer is: The home-grow provisions would become a lot more important,” said state Senator William N. Brownsberger, a Belmont Democrat and supporter of legalization.

The voter-passed measure allows adults to grow up to 12 plants per household. Doing so would let them to bypass the commercial market.

Hope Hicks, a Trump spokeswoman, did not respond to an e-mailed question Friday about whether the incoming administration plans to go after marijuana distributors in states where marijuana is legal.

A cannabis plant. Uriel Sinai/Getty Images

Joshua Miller can be reached at joshua.miller@globe.com.