The decision by Attorney General Jeff Sessions to reverse Department of Justice policy and open the door to the prosecution of marijuana cultivation and possession of legalized pot by Nevada and other states could keep Justice Department officials from getting confirmed by the Senate.
Cory Gardner, a Republican from Colorado, has said he will block all nominations to DOJ until the agency reinstates its policy, known as the Cole Memo, to not prosecute state-legalized marijuana programs, so long as they follow certain guidelines such as preventing the distribution of marijuana to minors.
“Without the Cole Memorandum, legal businesses operating in accordance with...states laws, they are operating now under a cloud of uncertainty,” Gardner said on in a speech on the Senate floor Thursday. “Thousands of jobs at risk, millions of dollars in revenue.”
Gardner's position was in stark contrast to that of Sen. Dean Heller, who struck a more conciliatory tone.
“Knowing Attorney General Sessions’ deference to states’ rights, I strongly encourage the DOJ to meet with Governor [Brian] Sandoval and Attorney General [Adam] Laxalt to discuss the implications of changes to federal marijuana enforcement policy,” Heller said in a statement provided to a Las Vegas Review-Journal reporter. “I also urge the DOJ to work with the congressional delegations from states like Nevada that have legalized marijuana as they review and navigate the new policy.”
Colorado and Nevada are two of eight states that have legalized marijuana and have built industries that sell it to the public for recreational use. More states are expected to pursue the matter in 2018.
Legal sales in Nevada began on July 1 and have generated more than $19 million in tax revenue through roughly mid-December, according to the Department of Taxation.
As of September, the agency had issued 250 licenses, including for 53 retail stores, 92 cultivation facilities, 65 product manufacturing facilities, 9 testing labs and 31 distributors. Most of those — 203, to be exact — are located in Clark County with the remaining distributed in Carson City and Nye and Washoe counties.
Gardner's threat to block DOJ nominees is serious given that Republicans control only 51 votes in the Senate. A nominee would need 51 votes to come up for a vote and the same number to be confirmed by the Senate. Assuming no Democrats would support the nominations, without Gardner’s vote, a tie could be broken by Vice President Mike Pence.
But Gardner could be joined by other Republicans from states that have legal marijuana, such as Heller. Their votes could kill a nomination.
The threat also comes at a time when some of the important jobs at the DOJ are being run by people in acting roles. Those include the Criminal Division, the National Security Division, the Drug Enforcement Administration, the Civil Rights Division and the Civil Division.
Gardner’s position also raises the question whether it makes sense for Senate Majority Leader Mitch McConnell to even bring up any DOJ nominees for consideration in order to protect his 51-vote majority and prevent Heller from having to take a vote that would be used against him in his GOP primary. Heller is one of the most vulnerable Republicans in the 2018 cycle and has been careful to avoid any missteps.
The same logic also applies to Gardner, who is up for reelection in 2020 in a state that was carried by Democratic presidential nominee Hillary Clinton in 2016.
Asked about the DOJ’s move Thursday, Senate Minority Leader Chuck Schumer said he has not seen the details.
Bernie Sanders, an independent from Vermont, which could legalize marijuana as soon as this year, said he felt the DOJ overreached, echoing most Democrats that weighed in on the matter.
“I think it’s a very, very bad decision,” said Sanders, who ran for the Democratic nomination for president in 2016. “There are a number of states that have gone forward to either legalize or decriminalize marijuana and those states must be allowed to do what they think is best for their people.”