06/18/17 Doug McVay

Congressional appropriators question the Department of Justice about drug policy and medical marijuana, plus members of Congress re-introduce legislation to protect medical marijuana patients.

Century of Lies
Sunday, June 18, 2017
Doug McVay
Drug War Facts
Download: Audio icon col061817.mp3



JUNE 18, 2017


DEAN BECKER: The failure of drug war is glaringly obvious to judges, cops, wardens, prosecutors, and millions more now calling for for decriminalization, legalization, the end of prohibition. Let us investigate the Century Of Lies.

DOUG MCVAY: Hello, and welcome to Century Of Lies. Century Of Lies is a production of the Drug Truth Network for the Pacifica Foundation Radio Network, on the web at DrugTruth.net. I'm your host Doug McVay, editor of DrugWarFacts.org.

On June 13, Deputy Attorney General Rod Rosenstein appeared before the Senate Appropriations Committee and the House Appropriations Committee to review and defend the Department of Justice's funding request for fiscal year 2018. Normally that's a task for the Attorney General himself, however Jefferson Beauregard Sessions III finds himself otherwise occupied these days, trying to defend himself and the current president against possible charges of perjury, obstruction of justice, and collusion with Russian agents.

That last bit kind of sounds like treason to me, but of course I'm not an attorney so don't take my word for that. Courts, and history, will judge them. But I digress, the point was that Rosenstein's boss J Beauregard Sessions III was busy that day testifying before the Senate Intelligence Committee about possible treasonous collusion with the Russian government in its interference with our 2016 general election.

So on June 13, Deputy Attorney General Rod Rosenstein appeared at two Congressional hearings to talk about criminal justice policy and the Justice Department budget for fiscal year 2018. Drug policy and the drug laws were major topics in those hearings, as one might expect.

A couple of Congress members were particularly interested in a letter from the Attorney General to Congressional appropriators that asked them to kill off an amendment that stops the Justice Department from going after state legal medical marijuana programs and businesses.

That amendment was originally the Hinchey Amendment, named for New York Democrat Maurice Hinchey. Then, in a bipartisan move, Representative Dana Rohrabacher was added, the California Republican, and it became the Hinchey-Rohrabacher Amendment. Then Hinchey retired so California Democrat Sam Farr took his place as lead sponsor on the Democrat side, and it was the Rohrabacher-Farr Amendment. And then Farr retired, so, Representative Earl Blumenauer, Democrat from Oregon, stepped up, and now it's the Rohrabacher-Blumenauer amendment. Rohrabacher-Blumenauer. And I used to think that I was bad at titles.

Well, the point is, the Attorney General wrote to Congressional appropriators asking them to kill off this amendment. That should not be a surprise, and I'm not referring to Beauregard's stated opposition to marijuana reform. The executive branch generally opposes any Congressional effort to tie its hands. Regardless of the subject, any administration will oppose riders that restrict them from spending funds as they see fit, just on principle, whether or not they agree.

So now we're going to hear from those Congressional hearings, and just to keep the questions and answers in context, we're going to hear the complete exchanges between Rosenstein and those members of Congress who asked about marijuana policy.

So first up, let's go to the Senate side. The first voice you hear will be that of Senator Lisa Murkowski, Republican from Alaska. After she finishes, we'll turn to Senator Dianne Feinstein, a Democrat from California.

SENATOR LISA MURKOWSKI: Thank you, Mister Chairman. Welcome, Deputy Attorney General. I had a conversation in my office with the Attorney General prior to his confirmation, and we spoke about the Department of Justice's government-to-government work with the tribes. He admitted to me at that time that his familiarity with the some 229 tribes in Alaska was limited. It was important for him to hear just the depth of some of the issues that we are facing as we deal with any level of law enforcement. So many of our communities have none whatsoever, and as a consequence, we are dealing with some very troubling statistics within our state.

So, I was pleased to note that the Department is making grants for implementation of VAWA's [Violence Against Women Act] special domestic violence criminal jurisdiction in the FY17 and then also requesting funds to continue that work in FY18, so that's good. I think that we have some things that we would like to discuss with you, and your folks, with regards to FY17 funding levels, are perhaps problematic. Tribal court funding is again one that I have a great deal of interest with, but, I do, I do want to find a path forward, with DOJ as it relates to some of the more immediate and very unique issues that we have as we deal with our tribal villages, and the issues that they face.

You would think that we are far enough away and remote enough that the opioid epidemic would not be hitting us in the state, but it is. The level of domestic violence and sexual assault that we face in terms of the statistics, the uptick of violent crime that we are seeing in urban Alaska. These are areas that we believe deserve a -- a more specific approach, and we would like to work with you.

We have invited and welcomed the Attorney General as well as you, as others, within the Department of Justice, to come up to the state to sit down with some of our native leadership, to discuss these issues. I again would reiterate that, and essentially ask for your continued willingness to work with us in perhaps some innovative ways to address the issue of -- of, of justice, and law enforcement, in rural Alaska.

DEPUTY AG ROD ROSENSTEIN: Yes, Senator, thank you, I would welcome that opportunity. You know, we didn't have this issue in my home state of Maryland, but many of my colleagues in the past two administrations, US Attorneys, have talked with me about the challenges that we have on those Native American issues, and I met early in my tenure as Deputy Attorney General with the director of our Tribal Justice Office, Tracy Toulou, and talked about some of these issues. So I would certainly welcome the opportunity to work with you on that.

SENATOR LISA MURKOWSKI: Good. We need to do that.

Let me switch gears a little bit. We've been talking about opioids and addiction, but let's talk about another issue. Alaska is -- is one of those states that has not only enacted medical marijuana statutes, but we through ballot initiative have allowed for broader sale and use of marijuana, that is regulated as we would regulate alcohol. In the state, we think that the regulatory regime is a fairly strong one, and consistent with the Cole Memorandum.

Now, that memorandum suggests that the federal government will not get in the way of states which maintain strong regulatory regimes. I had some correspondence with the prior Attorney General, Attorney General Lynch, relating to this, but the fact is the banking sector is still closed to those in the marijuana business, making it difficult for states to access a paper trail to ensure that those in the business are compliant.

We recently heard that postal inspector believe that they can seize state tax payments sent by mail from people in the marijuana business. Now I understand that DOJ wants to eliminate the appropriations rider prohibiting federal interference with state medical marijuana laws. So, I'm concerned and I'm speaking for a lot of people in my state who are worried about the inconsistency between the state marijuana laws as well as the federal policy.

The Department of Justice has not taken the position thus far that state marijuana laws are completely preempted by the Controlled Substance Act. I don't know if you're headed in that direction. The Cole Memorandum suggests strong deference to state laws, but we're not seeing the federal government to ensure that those strong state laws are enforceable. So, the bigger question is, where are we headed with marijuana?

DEPUTY AG ROD ROSENSTEIN: I appreciate your concern about that, Senator, it's a very difficult issue, obviously a situation where we do have a conflict between federal law and the law in some states. It's a difficult issue for parents of teenagers, like me, who have to provide guidance to our kids about how they should treat --

SENATOR LISA MURKOWSKI: Believe me, I agree with that. Yes.

DEPUTY AG ROD ROSENSTEIN: But I can tell you, I've talked with Chuck Rosenberg, the director of DEA about this, the administrator of DEA, and we follow -- we follow the law, and the science, and, you know, from the legal and scientific perspective, marijuana is an unlawful drug. It's properly scheduled under Schedule One, and therefore we have this conflict.

Jim Cole tried to deal with it, in that memorandum, and at the moment that memorandum is still in effect. I can't -- maybe there will be changes to it in the future, but we're still operating under that policy, which is an effort to balance the conflicting interests with regard to marijuana, and so I can assure you that's going to be a high priority for me, as the new US Attorneys come on board, to talk with them about how to deal with that challenge in the states that have legalized or decriminalized marijuana, whether it be for recreational or medical use.

But we are still, in the Department of Justice, as -- Attorney General Lynch actually mentioned this at her hearing, her confirmation hearing in January 2015, and she explained that, you know, we're responsible for enforcing the law, it's illegal, and that is the federal policy with regard to marijuana.

SENATOR LISA MURKOWSKI: Confusing. Thank you, Mister Chairman.


SENATOR DIANNE FEINSTEIN: Thank you very much, Mister Chairman. I would just like to say that I associate myself with the remarks of Senator Shaheen and Senator Collins. Yesterday, Mister Rosenstein, I was in New York, and a distinguished lawyer came up to me after I finished speaking, and said, beware. This president is going to act to terminate the special counsel. And I said, he couldn't possibly do that, it would be catastrophic. And he said, just wait.

I came home, and turned on the television, and this morning, and that's what I heard. So, it's very hard to know what to believe. I do believe it would be catastrophic, and I do believe it would destroy any shred of trust in the president's judgment that remains over here. I do not know, with specifics, what the procedure is, if that were to happen, but as I understand what you said, that could not be done without your assent. Is that correct?

DEPUTY AG ROD ROSENSTEIN: Yes, that's correct, Senator.

SENATOR DIANNE FEINSTEIN: And what you have said you would not assent, under the present situation.


SENATOR DIANNE FEINSTEIN: Because there's no cause.

DEPUTY AG ROD ROSENSTEIN: Yes, that's correct.

SENATOR DIANNE FEINSTEIN: So, is it fair to put that to rest?

DEPUTY AG ROD ROSENSTEIN: As far as I'm concerned, yes, Senator. I appointed him, I stand by that decision, I think it was the right one under those circumstances, and I'm going to defend the integrity of that investigation.

SENATOR DIANNE FEINSTEIN: Thank you. Let me go on to the COPS, adding methamphetamine grants. That's a program I helped establish in 2014. If I understand what you said, very quickly, the cut is $7 million in meth, and $10 million in heroin. But the addition is $40.4 million for DEA. Is that correct?

DEPUTY AG ROD ROSENSTEIN: That is my understanding, Senator, and I've been briefed by our career officials, actually they're whispering in my ear that yes, that is correct.


DEPUTY AG ROD ROSENSTEIN: We are going to commit more resources to combating heroin and opioid drugs over the next year.

SENATOR DIANNE FEINSTEIN: Good. So the COPS, adding methamphetamine program, will remain intact?

DEPUTY AG ROD ROSENSTEIN: I think, Senator, the answer to that is that what we intend to do is to fund task forces in a different way. I think that funding went directly to state and local law enforcement.


DEPUTY AG ROD ROSENSTEIN: Our proposal is to fund it through DEA, so there will be task forces, but they'll be DEA task forces as opposed to state and local task forces.

SENATOR DIANNE FEINSTEIN: So, you're cancelling the funding that goes to local police organizations.

DEPUTY AG ROD ROSENSTEIN: The direct funding to establish those, the grants to fund -- establish those local task forces, are proposed to be eliminated, but there's additional funding to DEA which will be used to fund state and local officers who work with DEA.

SENATOR DIANNE FEINSTEIN: So the answer is yes, you are de-funding community police departments that participate.

DEPUTY AG ROD ROSENSTEIN: I believe the answer is that we are proposing to de-fund that seven million dollars that went directly to local task forces.

SENATOR DIANNE FEINSTEIN: Okeh. I just want you to know that in California alone, in the past few months, there have been 61 arrests, 428 kilograms of meth seized, 242 kilograms of heroin, 1,728 kilograms of marijuana, and 11 firearms. So, it is a very busy task force, and it no doubt, if the money is not there, could likely be eliminated.

Secondly, there's a growing concern that the Russia investigation is taking too long. I heard a Congressman this morning expressing that point of view. Mister Comey briefed Senator Grassley and myself, as the chairman and ranking of Judiciary, three months ago, and it was a very full and good brief. Do you have any estimate as to the time this investigation will take, or when we might be expected to have some conclusion?

DEPUTY AG ROD ROSENSTEIN: Senator, I regret that I do not. You know, the way our investigations are conducted, it depends upon a lot of factors, and so it's generally very difficult for us to predict in advance how long the investigation is going to take. I can assure you it's important to me that it be done expeditiously, and I communicated that to Director Mueller, and I'm sure he also appreciates the importance of moving as quickly as we can.

How do we move it expeditiously? Well, it requires having appropriate resources, which I believe we do have, and always have had, to conduct the investigation, and making good decisions about how to go about conducting that investigation, and I believe we can rely on Director Mueller to do that.

SENATOR DIANNE FEINSTEIN: So, there is no estimate as to when we might expect some resolution.


SENATOR DIANNE FEINSTEIN: Okeh. Let's go to the wall. It's my understanding that for the 600 miles of wall, there are 400 lawsuits pending. Is that correct?

DEPUTY AG ROD ROSENSTEIN: Senator, I don't believe that I have a number for you. I regret we don't. I can try to get back to you on that, I don't have the number.

SENATOR DIANNE FEINSTEIN: And now, my understanding is you've put additional attorneys in the budget to handle these.


SENATOR DIANNE FEINSTEIN: And how many are there?

DEPUTY AG ROD ROSENSTEIN: Well, Senator, we have proposed a total of 27 additional attorneys in the civil and environmental divisions, and four million dollars that will be available to defend the government, and meet litigation requirements associated with increased immigration enforcement. That's not just about the wall, it's about immigration enforcement, but it would include any litigation that arose.

SENATOR DIANNE FEINSTEIN: And that would be the 400 cases that are now pending. What is your estimate of lawsuits on the remainder of the wall?

DEPUTY AG ROD ROSENSTEIN: Senator, I'm not familiar with that. I can look into it and try to get back to you, but I don't have that --

SENATOR DIANNE FEINSTEIN: Well, I really would like you to, because I think it's going to be extraordinary. I think, as you get into the Rio Grande Valley, you're going to find that property owners, as I hear, are not very pleased, and I think we ought to know about it, as we budget, so could I ask that you get back to me prior to the time we mark this bill up?

DEPUTY AG ROD ROSENSTEIN: I can try to give you that information. We have -- pardon me, Senator. I can give you whatever information that we have. It's important to keep in mind though that we're the lawyers in these issues, but it's actually Homeland Security that would have the primary responsibility for operational decisions, so, I'll give you whatever we can, but I think Homeland Security might be in a better position to comment on that.

SENATOR DIANNE FEINSTEIN: We will approach that. Thank you very much. Thanks, Mister Chairman.

DOUG MCVAY: That was Deputy Attorney General Rod Rosenstein answering questions from, first, Senator Lisa Murkowski, and then Senator Dianne Feinstein. Rosenstein appeared before the Senate Appropriations Committee on June 13. The audio comes to us courtesy of C-SPAN.

You're listening to Century of Lies, a production of the Drug Truth Network for the Pacifica Foundation Radio Network, on the web at DrugTruth.net. I'm your host Doug McVay, editor of DrugWarFacts.org.

Now, let's go to the House side. Representative Derek Kilmer, a Democrat from Washington state, had some questions for Deputy Attorney General Rosenstein.

REPRESENTATIVE DEREK KILMER: Thank you, Chairman. Thanks for being with us. I want to start where our ranking member, Ms. Lowey, ended, and that's on the issue of access to information.

Earlier this month, Senators Grassley and Feinstein sent the president a letter expressing concern over the administration's policy to not respond to members of Congress in the minority party, and Senator Grassley noted in this letter that, and this is a quote, "Unless Congress explicitly tells the Executive Branch to withhold information based on Committee membership, or Leadership position, there is no legal or constitutional basis for the Executive Branch to do so. For OLC [Office of Legal Counsel] to so fundamentally misunderstand and misstate such a simple fact exposes its shocking lack of professionalism and objectivity."

So my question to you, as Deputy Attorney General, did you have any role in crafting the OLC's policy to not respond to oversight requests from members in the minority?

DEPUTY AG ROD ROSENSTEIN: I think it's important, Congressman, to recognize that OLC, my understanding of it, and I'll have to go back and take a look at it, I don't -- I don't have it with me, I'll see if any of my staffers do.

But, it -- what it -- I believe it is, is a legal judgment about whether or not there's any obligation to respond, and that is, as I say, a separate matter from whether or not it's appropriate to respond in any individual case. There's some things we're not supposed to be talking about publicly or revealing to Congress, but within the rules, when we receive a proper request, if we can answer it, I believe that letter says we do have discretion to answer it, and as I say, with the caveat I don't have it in front of me and I will review it if you like, and I can get back to you after the hearing specifically.

But my recollection is that it addressed the issue of whether or not there's an obligation, whether or not a letter from an individual Congressman represents an oversight request. That was my understanding of the issue.

REPRESENTATIVE DEREK KILMER: So just to clarify. To your knowledge, has the Department of Justice or the Administration directed any agency not to respond to an inquiry from members of Congress.

DEPUTY AG ROD ROSENSTEIN: I do not know the answer to that. If -- nobody's directed me not to respond to any particular request, but as I say, I can look into it and get back to you.

REPRESENTATIVE DEREK KILMER: Okeh. Let me shift gears. I want to ask about voting rights. In 2013, in Shelby County versus Alabama -- versus Holder, the Supreme Court essentially struck down Section Five of the Voting Rights Act, which required jurisdictions with a documented history and ongoing record of race discrimination in voting to pre-clear any voting changes with you, the Department of Justice, or a three-judge federal court, before their implementation.

Following the Shelby decision, previously covered jurisdictions implemented changes to their voting laws which made it burdensome for millions of people around this country to participate in the process. Earlier this year, I led an effort with 70 of my colleagues in a letter to President Trump, urging that any investigation that he conducts into alleged voter fraud also include an investigation of voter suppression. We never received a response to that letter, and just over a month ago the president announced his advisory commission on election integrity, which intends to only investigate these non-substantiated allegations of widespread voter fraud.

So my question to you is, in light of the president's newly formed commission, how do you plan to allocate Department resources to enforce the Voting Rights Act, and combat the proliferation of voter suppression laws since Shelby County?

DEPUTY AG ROD ROSENSTEIN: Well, Congressman, it's my understanding that the commission you're referring to is not within the Department of Justice, and what I will -- what I'd like to do is reassure within the Department of Justice we have responsibility for protecting the voting rights of all Americans and we will. When voting rights and our election system are strengthened, our democracy is strengthened, so the Department of Justice continues to carefully investigate and review any claims of voter suppression, or of violation of the Voting Rights Act, and we'll take appropriate actions to prevent and combat any such violations, or voter suppression in all of its forms.

The issue that you raised at the start of your question is a more complicated issue of how to respond when states implement what they view as appropriate ways to protect the integrity of the vote, and in some cases, those are challenged as to what the impact may be, and that litigation will play out. But that's a separate issue from the Department's commitment and responsibility to enforce violations of law with regard to people's voting rights, and so, as I say, we don't have a role that I know of with regard to the President's election integrity task force, but we do have a responsibility to protect people's rights to vote, and we'll continue to do that.

REPRESENTATIVE DEREK KILMER: I want to, if I could, Chairman, ask one more question, is that time all right? Washington state, where I'm from, recently legalized marijuana, and in 2013, the former Deputy AG issued a memo, James Cole issued a memo that laid out eight federal enforcement priorities with respect to cannabis. It was recently announced that the -- Attorney General Sessions formed a task force to review the Department's cannabis enforcement policies. In recent years Congress appropriation bills have reflected the Cole Memo.

Do you have any update on what the Department plans to do? Does it plan to update or rescind the Cole Memo?

DEPUTY AG ROD ROSENSTEIN: I do not have any update, Congressman. I can tell you, I don't want to take too much time to do it, but as you know it's a very complicated issue for us. Under federal law, as passed by the Congress, and given the science concerning marijuana, it's a Schedule One controlled substance, so it's illegal under federal law.

That's a decision I've talked with Administrator Rosenberg about, and I'm comfortable that that is the right legal and scientific answer. It's illegal under federal law. We have a situation where some states have taken a different approach, and legalized or decriminalized marijuana for medical use, in some cases for recreational use. I'm a parent of two teenagers, and for those of you who've been through that stage, you know how difficult these issues can be. And so I have to deal with this issue, as many of our friends and colleagues do.

The question though of whether it's illegal under federal law is resolved, because Congress has passed the law, and it's illegal, and scientists have found that there's no accepted medical use for it, so -- Deputy Attorney General Cole, as you mentioned, adopted this memorandum, he made an effort to examine that issue and find a way forward for the Department, where we could continue with our obligation and enforce federal law, and minimize the intrusion on states that were attempting to follow a different path.

I was a US Attorney in the Obama Administration, operating under the Cole Memorandum, and I know many of my colleagues who were in your state and other states that have decriminalized marijuana to some extent. They had -- they had to deal with that issue, they had to grapple with the consequences, and we're going to have to deal with that as well.

So for the moment, that Cole Memo remains our policy. There may be opportunity to review it in the future. At the moment, I'm not aware of any proposal to change it, but I think we're all going to have to deal with that in the future.

REPRESENTATIVE DEREK KILMER: Thank, Chairman, I yield back.

Thank you, Chairman. I will actually, very briefly, I was actually pleased to see that the budget proposed an increase in funding for the COPS program. We've seen great value in our neck of the woods with that program, and not just with regard to putting more law enforcement on the street, but also by pursuing more community policing opportunities. One of those very successful examples of that was the Project Peace effort in Tacoma, which actually was a collaboration between the police department and community members.

I'd like to just get your sense of, you know, will the Department continue to support the mission of the COPS program, and that work toward collaborative policing and improved community police relations? And moreover, do you think that the additional funds that are requested in this meet the level of demand for increased community policing?

DEPUTY AG ROD ROSENSTEIN: Yes, Congressman, we will continue to support the COPS program. I met with the leadership of the COPS office, and I've talked with them about my view of how important it is. There are places in the country where we do need support for local law enforcement, and that COPS program provides us with a valuable opportunity to support our state and local partners.

I think you recognize, we all recognize, that most of our law enforcement agencies are trying to do the right thing. Sometimes they don't have the training they need, sometimes they don't have the tools that they need, and sometimes there are willful violations, and where there are we deal with them appropriately, but that COPS funding, which we've requested, will allow us to help support state and local law enforcement, to make sure that they're in compliance with federal Constitutional requirements, and I believe that that will help us in promoting public safety throughout the country.

So with regard to your question about whether it's an appropriate amount, you know, as we've discussed, it's always a balance as to, you know, where it's appropriate to spend the money, but I can commit to you that with the request that we've made, if that program is funded, we're going to make sure that money is used effectively to achieve those goals.

REPRESENTATIVE DEREK KILMER: Thank you, Chairman, I yield back.

DOUG MCVAY: That was Deputy Attorney General Rod Rosenstein answering questions posed to him by Representative Derek Kilmer, a Democrat from Washington state who serves on the House Appropriations Committee.

The appropriations committees are working on the fiscal year 2018 federal budget. The federal fiscal year runs from October First through September Thirtieth.

This was a busy week on Capitol Hill. Senators Cory Booker and Kirsten Gillibrand, Democrats from New Jersey and New York respectively, along with Representative Steve Cohen, a Democrat from Tennessee, held a news conference to re-introduce the Compassionate Access, Research Expansion, and Respect States Act of 2017. Here's Senator Gillibrand.

SENATOR KIRSTEN GILLIBRAND: I think fundamentally, as Cory said, this is about our children. It's about our communities, it's about the health and well being of our family members, and it is outrageous that they cannot access medicine that they need to save their lives, they cannot access the medicine they need to address suffering and pain, and for a lot of patients, the only medicines available to them risk addiction, overdose, and death, particularly when it comes to the class of opioid medicines.

And so it's really important that our patients have access to medicines that are better for them, and don't have those risks.

DOUG MCVAY: That was New York Senator Kirsten Gillibrand speaking about the CARERS Act, which is being reintroduced in this session of Congress in both the House and the Senate.

And well, that's it for this week. I want to thank you for joining us. You're listening to Century of Lies. We're a production of the Drug Truth Network for the Pacifica Foundation Radio Network, on the web at DrugTruth.net. The executive producer of the Drug Truth Network is Dean Becker. Drug Truth Network programming is also available via podcast, the URLs to subscribe are on the network home page at DrugTruth.net.

The Drug Truth Network is on Facebook, please give its page a like. Drug War Facts is on Facebook too, give its page a like and share it with friends. Remember: Knowledge is power. Follow me on Twitter, I'm @DougMcVay and of course also @DrugPolicyFacts.

We'll be back next week with thirty more minutes of news and information about the drug war and this century of lies. For now, for the Drug Truth Network, this is Doug McVay saying so long. So long!

For the Drug Truth Network, this is Doug McVay asking you to examine our policy of drug prohibition: the century of lies. Drug Truth Network programs archived at the James A. Baker III Institute for Public Policy.