President Trump is reportedly weighing a plan to fire U.S. Attorney General Jeff Sessions and potentially replace him with Scott Pruitt, who currently leads the Environmental Protection Agency.
Marijuana industry operators and consumers might initially breathe a sigh of relief at the prospect of Sessions leaving the Justice Department, since it is difficult to imagine a more hostile opponent of legalization than the current attorney general.
But a look at Pruitt’s record on cannabis, and the prospect of him taking on oversight of federal drug law enforcement, will likely alarm many in the cannabis community.
Pruitt’s Anti-Marijuana Record
As Oklahoma’s attorney general, Pruitt filed a federal lawsuit against neighboring Colorado’s marijuana policies. While the U.S. Supreme Court ultimately decided not to take the case, briefs from Pruitt and his Nebraska co-plaintiff made clear a personal disdain for cannabis legalization.
Trying to draw a connection to previous environmental disputes between states, one brief called legal marijuana a “state-authorized pollutant.”
“Colorado authorized the generation of a harmful, illegal substance that by the foreseeable operation of users and abusers inevitably enters and causes injury in Nebraska and Oklahoma,” it said. “Nebraska and Oklahoma can no more prevent Colorado’s marijuana from crossing its borders than it can prevent its winds from blowing and rivers from flowing.”
Pruitt and his Nebraska counterpart also compared the possibility that the Supreme Court wouldn’t overturn Colorado’s marijuana law to “saying that a tavern keeper cannot be held responsible for the drunk who kills a family with his car even though he knowingly sold the drunk ten beers in two hours.”
In a separate instance of prohibitionist legal advocacy, Pruitt attempted to rewrite the ballot title for a medical cannabis measure in his own state.
“This measure legalizes the licensed use, sale, and growth of marijuana in Oklahoma,” he edited the language to read, in what appeared to be a fairly transparent move to make voters think it was a recreational initiative. “There are no qualifying medical conditions identified.”
Advocates sued, and the state Supreme Court ultimately overturned the attorney general’s changes. But the delay meant that the measure was bumped from the 2016 general election ballot to this year’s June 26 primary.
Perhaps even more alarming from a potential U.S. attorney general, filings from Pruitt’s office in the Oklahoma case assert that states don’t have the right to enact their own cannabis laws in contravention of federal prohibition. He even went so far as to imply that local officials charged with implementing legalization policies could be prosecuted under federal law.
“A state may not establish its own policy that is directly counter to federal policy against trafficking in controlled substances,” read one brief. “[The Oklahoma initiative] requires State officials to conspire…to violate federal drug laws by issuing licenses that will break federal law if certain preconditions are met, and to arguably share in the profits for breaking federal law by taxing the sale of marijuana.”
Separately, Pruitt moved last year as EPA administrator to block approval of pesticides for use on marijuana in states where it is legal.
“Any economic, social or environmental costs associated with pesticide use on cannabis would not be reasonable or justified in light of the fact that such use is in furtherance of an illegal act,” he wrote, referring to federal law.
Trump Wants To Dump Sessions
Trump is upset with Sessions over his decision to recuse himself from the investigation into Russia’s attempts to interfere with the 2016 U.S. presidential election, a move that the president believes made him vulnerable to scrutiny by special prosecutor Robert Mueller.
Now, amidst a broader administration shakeup that has already led to the dismissal of Secretary of State Rex Tillerson, Trump may take the opportunity to show Sessions the door, Vanity Fair reported on Wednesday.
“According to two Republicans in regular contact with the White House, there have been talks that Trump could replace Sessions with E.P.A. Administrator Scott Pruitt, who would not be recused from overseeing the Russia probe,” the magazine wrote. “Also, as an agency head and former state attorney general, Pruitt would presumably have a good shot at passing a Senate confirmation hearing.”
In January, Politico reported Pruitt “told friends and associates that he’s interested in becoming attorney general.”
Pruitt Confirmation Not A Sure Thing
Sessions, a longtime legalization opponent, moved in January to rescind an Obama-era memo that has generally allowed states to implement their own marijuana laws without federal interference.
That led Sen. Cory Gardner, Republican of Colorado, to block Department of Justice nominations in protest.
.@SenCoryGardner on Attorney General Jeff Sessions’ #marijuana policy change: “I will be holding all nominations for the Department of Justice. The people of Colorado deserve answers.” pic.twitter.com/BnVEkA54ag
— CSPAN (@cspan) January 4, 2018
After public back-and-forth between the senator and attorney general, as well as closed-door meetings, Gardner agreed to lift holds on select positions.
But if Trump were to move to replace Sessions with another hardcore cannabis prohibitionist — one who has actually sued Gardner’s own state over the issue, no less — it’s hard to imagine a scenario in which the Colorado senator would support confirmation. And even if he didn’t block a floor vote outright, which he very well may be willing to do, his individual support for the nomination would be crucial in a Senate that is narrowly divided along party lines by just a two-seat margin.
Pruitt’s views on the ability of states to legalize marijuana would also likely draw skepticism from other Republican senators who have been active on the issue, such as Rand Paul of Kentucky and Lisa Murkowski of Alaska.
Confirmation Vote Might Not Be Needed
But even if Pruitt’s confirmation by the Senate seems precarious, Trump may have another option. Under the 1998 Vacancies Reform Act, presidents can appoint any previously Senate-confirmed official to other posts for limited periods of time. Because Pruitt was approved as EPA administrator last year, he’s eligible.
While that means Pruitt could be installed as attorney general without another Senate vote, he wouldn’t be able to keep the job permanently.
“Under the VRA, such a person could serve as acting attorney general for only 210 days—plus another 210 days if Trump eventually gets around to nominating someone,” Politico reported.
And 420 days is a lot of time to build on Sessions’s anti-marijuana moves and do further damage to the businesses and consumers that are complying with state laws.
Photo courtesy of Gage Skidmore.