For months, Sen. Cory Gardner has been blocking the Trump administration from staffing key positions at the DOJ. Among these position are Assistant Attorney General, Civil Division; Assistant Attorney General, Civil Rights Division; Assistant Attorney General, Criminal Division; and, until Gardner was finally shamed into relenting, Assistant Attorney General, National Security Division. In all, around 20 positions reportedly were affected.
You might think that Gardner’s obstruction leaves these key divisions directionless, or at least without the degree of direction they should have. It’s actually worse worse than that. As Christian Adams has shown, the absence of presidential appointees at the Assistant Attorney General level can leave left-wing Obama holdovers with enormous sway at the Justice Department.
Why has Gardner done this significant favor for the left? Because of marijuana.
Gardner is vexed with Attorney General Sessions because Sessions refuses formally to nullify federal drug law in Colorado, which has “legalized” marijuana. It’s not that the Sessions Justice Department is prosecuting marijuana cases. Coloradans can still get as high as they want while others reel in the profits.
Rather, the DOJ has simply rescinded a document, the Cole memorandum, that discouraged federal prosecutors in most cases from bringing charges wherever marijuana is legal under state law. As Sessions has explained:
I cannot and will not pretend that a duly enacted law of this country—like the federal ban on marijuana—does not exist. Marijuana is illegal in the United States—even in Colorado, California, and everywhere else in America.
To punish Sessions for upholding this self-evidence proposition, Gardner has impaired the proper functioning of the Justice Department. And such is the state of the Senate that one petulant, irresponsible Senator can succeed in this irresponsible endeavor. No wonder the Senate has become a laughingstock.
Now, however, the logjam has been broken. Trump and Gardner have made a deal.
According to the Washington Post, Gardner will graciously permit key DOJ positions to be populated with Trump nominees. In exchange, Trump reportedly told Gardner that, in the words of the Post, the marijuana industry in Colorado will not be targeted. In Gardner’s words, Trump promised “the Department of Justice’s rescission of the Cole memo will not impact Colorado’s legal marijuana industry.”
(It’s telling, I think, that Gardner speaks of protecting his state’s “marijuana industry.” Gardner likes to cast this dispute as a matter of states rights. More likely, it’s a matter of currying favor with those who are making money off of dope and, I imagine, with the multi-billion dollar “legalization” movement).
In addition, President Trump reportedly agreed to “support” legislation providing, in a way yet to be determined, that the federal government cannot interfere with states that have voted to legalize marijuana.
Legislation is, of course, the appropriate way to achieve this result. Holding the Justice Department hostage is not.
How meaningful are Trump’s concessions? To me, they don’t seem terribly meaningful.
In terms of a legislative “fix,” I doubt that Trump will twist any arms. More likely, he will offer some lip-service and, of course, decline to veto any marijuana legislation Gardner is able to steer through.
But Trump was never likely to use the veto over this. In fact, as a candidate he took the position that states should be able to decide how to deal with marijuana.
Nor does there seem to be much in Trump’s commitment that the withdrawal of the Cole memo won’t impact Colorado’s weed industry. There’s little, if any, indication that the rescission was going to have any adverse effect. To my knowledge, the local U.S. attorney has shown no interest in marijuana busts. And Sessions himself has told federal prosecutors, whether in Colorado or elsewhere, not to take on routine drug cases.
For Trump and Gardner, the deal is win-win. Trump will finally get his nominees confirmed and at no cost to him, given his agreement with Gardner on the merits. He also strikes a blow against Jeff Sessions, though not much of one (for the reasons just discussed).
Gardner wins favor from his state’s marijuana industry to which he has demonstrated his loyalty. He can also claim, with superficial plausibility, to have won this showdown.
The loser here is good government. By rewarding Gardner’s behavior, the administration encourages other Senators to block large numbers of nominees for reasons having nothing to do with their merits.