What Did Loretta Lynch Just Tell Us?

Loretta Lynch

Loretta Lynch, President Barack Obama’s nominee to succeed Eric Holder as attorney general, began confirmation hearings on January 28, 2015. She made news immediately by saying that she does not support the legalization of marijuana. What else might the legal marijuana investment community reasonably conclude about her?

  • She is likely to be confirmed,
  • She will probably serve only until early 2017, unless asked to remain by the incoming president, and
  • Although no friend of legalization, she does not appear likely to change the Department of Justice’s current enforcement priorities.

No one really expected federal policy to change much with respect to legalization before 2016. The depth of caution signaled by the nomination of Lynch and the public positions taken by potential Democratic and Republican presidential nominees does not suggest a change in federal policy even thereafter. Legalization is simply nobody’s issue, yet.

Loretta Lynch’s professional biography is vastly different from Eric Holder’s. Eric Holder spent a great deal of his legal career in the Department of Justice; his tenure has been marked by civil rights work and calls to speak more openly about racial discrimination. Reform of the DOJ and rebuilding its Civil Rights Division has been central to his mission. He is a policy guy, a reformer.

Lynch is a prosecutor, whose career has been distinguished by her involvement in many high-profile cases involving political corruption, terrorism, police brutality and cybercrime, among others. She began her career prosecuting violent crime and drug offenses in the U.S. Attorney’s office for the Eastern District of New York. She is by all accounts very effective in enforcing the law, but there have been no reports of Hamlet-like questioning of its direction.

Her performance before the committee has been described as “flawless,” “cautious,” even “anonydyne.” That is probably a reasonable approach to a confirmation hearing. Some hope that her stance on marijuana is an example of saying what she has to in order to be confirmed.

As a prosecutor, however, she certainly appreciates the implications of testifying under oath and, as someone who cut her prosecutorial teeth in the drug wars, there is nothing in her background to suggest that she would support legalization. She also testified that she would not seek to change current DOJ enforcement priorities. There is every reason to believe her on both counts.

Caution is the watchword with respect to marijuana legalization among the likely Democratic presidential candidates and those rumored to be waiting in the wings if Hillary Clinton decides not to run. Clinton has apparently adopted a “wait-and-see” position but has also cast doubt on the state of medical marijuana research and described it as a gateway drug.

Vice President Joe Biden has, so far, permitted no daylight between himself and the president, supporting neither legalization nor the expenditure of resources on criminal prosecutions. He has also used the gateway language. Sen. Claire McCaskill worries about teens getting high but could support the production of industrial hemp, a potential boon to Missouri’s agricultural economy. Former Gov. Martin O’Malley of Maryland signed bills that decriminalized marijuana and legalized limited medical use but has said that he strongly opposes recreational legalization. Sen. Elizabeth Warren opposes outright legalization.

Former Florida Gov. Jeb Bush opposed Florida’s medical marijuana initiative, but said he was unsure whether the federal government should enforce federal marijuana laws if the proposal had passed. He also admits smoking marijuana in high school. Wisconsin Gov. Scott Walker believes that legalization would be premature. Sen. Rand Paul supports decriminalization, legalizing medical marijuana and permitting the production of industrial hemp but views marijuana as a states’ rights issue. Sen. Ted Cruz would have the federal government re-impose prohibition on the states where marijuana is legal in any way. The hopefuls are all over the place.

Without reform of the Controlled Substances Act, the legal marijuana industry will always be at risk from changing law enforcement priorities. Every election will cause anxiety, and that is no way to build an industry. What the marijuana investment community knows about Loretta Lynch is symptomatic of what we know about national political priorities a year and a half before a presidential election.

Federal legalization is not making it onto the radar and it won’t, absent political and financial mobilization around the issue. That may be the biggest takeaway from Lynch’s nearly opaque performance. The high ambiguity/low priority stance taken by a number of presidential hopefuls can also mean anything. It may be a signal that some are persuadable. In any event, the legal marijuana community’s investment in political persuasion at the federal level is necessary to protect financial investment in the future.

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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