When Jeff Sessions, Donald Trump’s choice for attorney general, was nominated as a federal judge in 1986, one comment that got him into trouble was a joke about the Ku Klux Klan. A federal prosecutor testified that Sessions, when he was the U.S. attorney for the Southern District of Alabama, had said he thought the KKK “was OK until I found out they smoked pot.”
In light of the Alabama senator’s longtime obsession with the evils of marijuana, the anecdote reads like a joke about him. After all, this is the same man who thinks “good people don’t smoke marijuana” and who was outraged when President Barack Obama conceded that cannabis is less dangerous than alcohol. Sessions’ retrograde opinions about marijuana cast doubt on Donald Trump’s commitment to respect state laws allowing production, distribution, and consumption of the drug.
Trump has said he supports medical marijuana but has concerns about broader legalization, a policy he nevertheless thinks states should be free to adopt. “I really believe you should leave it up to the states,” he said at a rally in 2015. “I think that should be a state issue, state by state.”
Sessions, an old-fashioned drug warrior who pines for the days when Nancy Reagan’s Just Say No campaign helped “create a hostility to drug use,” seems to disagree. During a 2009 Senate hearing, he complained that “Attorney General [Eric] Holder has said federal authorities will no longer raid medical marijuana facilities in California.” At a hearing last April, he declared that “marijuana is not the kind of thing that ought to be legalized,” saying “the Department of Justice needs to be clear.”
Every state-licensed marijuana business remains a criminal enterprise under federal law, subjecting its owners to the risk of prosecution and forfeiture. An anti-pot crusader at the helm of the Justice Department could make that risk salient by going after growers, manufacturers, and retailers, or just by threatening to do so.
Sessions also could challenge state marijuana laws in federal court, although he might not like the result. While judges might agree that state regulation of marijuana suppliers conflicts with federal law, the Justice Department cannot force states to recriminalize what those businesses do.
Such federal interference would be inconsistent with public opinion as well as Trump’s promises. Recent polls indicate that most Americans think pot should be legal, although most Republicans continue to oppose legalization. But even among Republicans, most—70 percent, according to a CBS News poll conducted last April—think the feds should not try to override state decisions in this area.