Jeff Sessions Leaves the Cole Memo Intact, for Now

Late Thursday, US Attorney General Jeff Sessions formally rescinded 25 guidance documents created by his predecessors at the Justice Department. The guidance memos, meant to set policy and establish enforcement priorities, dealt with a variety of issues. Most critically for the cannabis industry, the Cole memo was not among the 25 memo scuttled by Sessions.

By leaving the Cole memo intact, Sessions allowed state-legal adult cannabis to stand. For the time being.

That means the Justice Department’s Aug. 2013 guidance document, which spelled out the DOJ’s priorities and areas of concern regarding legal adult-use cannabis in Colorado and Washington (and all later adult-use states), remains intact at least for the foreseeable future.

The Cole memo, written by James Cole, a deputy attorney general under then-AG Eric Holder, spelled out the conditions under which the Justice Department would allow states to regulate and enforce their own cannabis laws. The memo did not federally legalize cannabis, or legally prevent the DEA or other Justice Department agencies from enforcing federal cannabis laws in legal states. It is merely a policy document meant to guide departmental decisions about state-legal cannabis.

Sessions, a vocal opponent of state legalization laws, has often expressed a desire to reverse two decades of progress won by legalization advocates. Rescinding the Cole memo would have been the most direct attack on those gains. In his move on Thursday, Sessions did not eliminate the Cole guidance, but neither did he confirm that it would continue to guide his department’s decisions.

In March, President Trump issued Executive Order 13777, which called for agencies to establish Regulatory Reform Task Forces to identify existing regulations for potential repeal, replacement, or modification. The Department of Justice Task Force, chaired by Associate Attorney General Rachel Brand, began its work in May.

On November 17, Sessions issued a memorandum prohibiting DOJ components from using guidance documents to circumvent the rulemaking process and directed Associate Attorney General Brand to work with components to identify guidance documents that should be repealed, replaced, or modified.

The DOJ’s media release stated that the Department “is continuing its review of existing guidance documents to repeal, replace, or modify.” So the Cole memo could still be under review. 

The list of 25 guidance documents that DOJ withdrew on Thursday are listed below. For more detail, see the Justice Department’s web site. 

1. ATF Procedure 75-4.
2. Industry Circular 75-10. 
3. ATF Ruling 85-3. 
4. Industry Circular 85-3. 
5. ATF Ruling 2001-1. 
6. ATF Ruling 2004-1.
7. Southwest Border Prosecution Initiative Guidelines (2013).  
8. Northern Border Prosecution Initiative Guidelines (2013).  
9. Juvenile Accountability Incentive Block Grants Program Guidance Manual (2007). 
10. Advisory for Recipients of Financial Assistance from the U.S. Department of Justice on Levying Fines and Fees on Juveniles (January 2017). 
11. Dear Colleague Letter on Enforcement of Fines and Fees (March 2016). 
12. ADA Myths and Facts (1995).
13. Common ADA Problems at Newly Constructed Lodging Facilities (November 1999).
14. Title II Highlights (last updated 2008).
15. Title III Highlights (last updated 2008).
16. Commonly Asked Questions About Service Animals in Places of Business (July 1996).
17. ADA Business Brief: Service Animals (April 2002). 
18. Prior Joint Statement of the Department of Justice and the Department of Housing and Urban Development Group Homes, Local Land Use, and the Fair Housing Act (August 18, 1999). 
19. Letter to Alain Baudry, Esq., with standards for conducting internal audit in a non-discriminatory fashion (December 4, 2009). 
20. Letter to Esmeralda Zendejas on how to determine whether lawful permanent residents are protected against citizenship status discrimination (May 30, 2012). 
21. Common ADA Errors and Omissions in New Construction and Alterations (June 1997). 
22. Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996). 
23. Website guidance on bailing-out procedures under section 4(b) and section 5 of the Voting Rights Act (2004).  
24. Americans with Disabilities Act Questions and Answers (May 2002).
25. Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities (October 31, 2016).