Tuesday was possibly the greatest day in the history of drug policy reform in America—and its most ominous.
A near-clean sweep for marijuana legalization across the country coupled with surprising victories for medical marijuana was occasion for raucous celebration.
But it was almost ruined by Donald Trump’s stunning capture of the presidency, and may yet be compromised by his motley crew of pot-hating advisors, one of whom may turn out to be his attorney general.
A President Trump—“a boogie man of unparalleled size and fearsomeness to the legal cannabis industry,” according to Leslie Bocksor, president and founder of cannabis-sector investment firm Electrum Partners—could create a chill strong enough to send marijuana stocks retreating and leave the once-inevitable end of the Controlled Substances Act in doubt.
With a landslide win in Florida and victories in Arkansas and North Dakota, medical marijuana is available in 26 states, and at last penetrated into the Deep South. And after voters legalized recreational marijuana in Maine, Massachusetts, Nevada, and all-important California, more than 60 million people—20 percent of Americans – can no longer be arrested, lose custody of their children, or lose student loans solely for using cannabis.
But that’s in regard to state laws. Federal law prohibiting marijuana has always loomed.
For eight years under Barack Obama, the U.S. Justice Department has taken a mostly hands-off approach, choosing to let states violating federal drug law be. DEA seizures of plants and processed pot soared to all-time highs in Obama’s first term. Justice Department meddling helped torpedo California’s first shot at legalization in 2010, and shut down dispensaries across the state the next year. Still, successful, billion-dollar commercial cannabis industries have been allowed to flourish in several states in the years since.
Now, there are fears that the Trump Administration will halt this momentum, possibly by force. Trump spent next to no time on the campaign trail speaking about drug policy, but as with most everything else, “Donald Trump is totally unpredictable on this issue,” said Ethan Nadelmann, executive director of the Drug Policy Alliance, during a Wednesday conference call with reporters.
Candidate Trump horrified millions of Americans with bold draconian promises; vicious attacks on Hillary Clinton and his Republican primary opponents were his stock-in-trade. On Thursday, president-elect Trump demonstrated none of that combativeness during his visit to the White House, saying it was a “great honor” to meet Obama–after spending years questioning the circumstances of his birth.
“There was a moment years ago when he said he was interested in legalizing all drugs,” in 1990, when Trump was not yet a Republican, Nadelmann observed, “and then he was seen using drug-war rhetoric in debates with Hillary Clinton.”
And yet, shortly after the GOP convention, Candidate Trump replied to a questionnaire from the International Association of Chiefs of Police on the subject on marijuana thusly:
“This is a state issue. However, Congress should work to make compatible the laws of the land with the laws of the states.”
With that kind of erratic record, everyone is “pretty much in the dark” as to what Trump will do on weed, said one Sacramento lobbyist, and will be until Trump starts rewarding loyalists with cabinet-level appointments.
For much of the 2016 campaign, the attorney general position was supposed to be the political spoil in store for New Jersey Gov. Chris Christie, the former federal prosecutor who was the first former opponent in the Republican primary to deliver Trump his endorsement.
As governor, Christie’s record on marijuana is almost entirely hostile, with some inconsistency mixed in. He seemed to do everything he could to delay the implementation of New Jersey’s still-limited medical marijuana program, before signing into law this fall a bill allowing sufferers of PTSD to use cannabis. As a presidential candidate, he was much worse. He greeted voters in Colorado with Trump-like bellicosity, informing them that the party was over and he would “start enforcing [federal] law” there within days of taking office, a near-total reversal of Obama’s laissez-faire attitude. Less than a week before Trump’s election, Christie’s shot at becoming America’s top cop evaporated when two of former top aides were convicted of conspiracy and fraud for their roles in the Bridgegate scandal. During the trial, they testified that Christie knew all about the plan to close traffic lanes leading to the George Washington bridge as political payback for a mayor who failed to endorse his reelection bid. Christie has vigorously denied this, but the threat of having his attorney general pick fall under indictment means Trump is likely looking elsewhere—namely, at former New York City mayor Rudy Giuliani, another federal prosecutor.
Under Giuliani, New York police arrested more people per capita for petty marijuana crimes than any other major American city, making him another unpalatable choice. This utterly unfriendly short list is giving “many cannabis entrepreneurs sleepless nights, wondering about the monster under their bed,” as the investor Bocksor put it.
But neither man’s record is a surefire indicator of how they’d run the Justice Department, noted Marsha Cohen, a professor at UC Hastings College of the Law in San Francisco. Big bureaucracies like that do not change overnight, meaning it would take time for the DOJ to start a countrywide cannabis crackdown.
And it should be noted that, during the Obama years, the Paul Ryan-controlled Congress has repeatedly removed funding for Justice Department interference with state-legal weed, so it’s possible that even a bellicose AG might have his hands tied.
And no one knows what Trump will do, either. Marijuana won handily in states like Florida, where Trump won by less than a percentage point, and enjoys broad bipartisan support. “These things are always political,” Cohen says, “and it doesn’t stop being political”—meaning weed could finally be too popular to undo.
At the same time, marijuana could become too big to ignore. Across California, entrepreneurs and real estate investors are laying the groundwork for large-scale cannabis production, paying millions of dollars for greenhouses in the Salinas Valley and converting disused industrial warehouses and even former prisons in dusty desert towns to production facilities.
“I think medical marijuana is too far out the gate [to be stopped], but I do think adult use is very much in jeopardy,” said Hezekiah Allen, the Sacramento, Calif.-based executive director of the California Growers Association, a cannabis cultivators’ lobby group.
If things get too big too fast, a Trump administration might execute a raid at the biggest operation in order to “make an example out of the folks beyond the pale, so to speak,” predicts Allen, the growers’ lobbyist. “I don’t think these things will come to pass, but it’s more likely that they do now” with Trump headed to the White House.
Trump was a favorite of law enforcement even before his dark keynote speech at the Republican National Convention, full of ominous warnings of a return to “law and order.” Whether or not they voted for Trump, most cops are conservative by nature—and could be more emboldened to push back against a cannabis industry now more than ever. After all, even Obama’s Justice Department did.
“Law enforcement can still terrorize us if they’re not on board,” Allen says. “This is why we need to move more slowy.”
At the same time, few cannabis industry business owners appear to be changing their post-legalization plans solely because of a Trump presidency. Dispensaries are still looking for extra locations, distribution centers are opening up, and investors continue to pour money into it all. “There are concerns, but it’s business as usual,” says Erich Pearson, founder and president of San Francisco medical cannabis dispensary SPARC, one of the city’s biggest.
SPARC plans to be available to recreational marijuana customers once the state starts issuing licenses by early 2018.
There’s still plenty that the marijuana industry needs from the federal government—banks are still reluctant to take deposits from cannabis businesses, and the tax code still penalizes marijuana outlets—but federal law enforcement, the biggest bogeyman around when Obama took office, is no longer the number-one concern, and isn’t expected to return under Trump.
Trump’s agenda is deceiving in its simplicity. It’s one thing to say that America will be great or that it will win or make Mexico pay for a wall—it’s quite another to say how that will be done.
But for once, let’s assume Trump means exactly what he says. That notion is terrifying to most of his political opponents—to undocumented immigrants, to Mexicans, to Muslims, to women, to anyone who abhors outré braggadocio about sexual assault and open entreaties for foreign powers to meddle in our internal affairs, but for anyone concerned about advancing legal marijuana, his retoric about states rights is reassuring.
That’s far from Hillary Clinton’s promise to reschedule upon election—and there’s no indication that that promise or anything else would survive the first cabinet meeting.
For now, the cannabis industry appears plowing ahead as if nothing at all had changed in Washington, predicated mostly on the belief that after a night like Tuesday, cannabis reform has more momentum behind it than even the alt-right. Cracking down now would win Trump no goodwill from the centrists and lefties he has to work with, and no longer pleases the right.
“I don’t think the Trump Administration is stupid,” Pearson said, “but anything is possible with this guy, right?”
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