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Episode #140 – James M. Cole, The Cole Memos

Cannabis Economy Podcast
Episode #140 - James M. Cole, The Cole Memos

Episode #140 – James M. Cole, The Cole Memos

Former US Deputy Attorney General Jim Cole joins us to discuss the history around the three Cole Memos.  Mr. Cole takes us through the under appreciated Cole Memo 1, the celebrated Cole Memo 2 and Cole Memo 3 which was released of course in concert with FinCEN guidance from the US Treasury.

Transcript:

Speaker 1: James m cole,

Speaker 2: US Deputy Attorney General Jim Cole joins us to discuss the history around the three coal memos. Welcome to cannabis economy. I'm your host Seth Adler. Check us out on twitter, facebook, instagram, and our new youtube channel with a handle can economy that's to eds and the word economy. Not sure how you're accessing this, but please know that you can get us through the new cannabis economy app in Itunes, the itunes podcast APP and Google play. Mr Cole takes us through the under appreciated Cole Memo One, the celebrated Cole memo and the Cole memo three, which was released of course in concert with Vince and guidance from the US Treasury. It was an honor to speak with Jim and I very much appreciate his time. Jim Cole on the Cole memo.

Speaker 1: All right. I am sitting in front of a former deputy attorney general of the United States of America, James m cold. Jim, thank you so much for having us in and thanks for inviting. So, um, there are so many questions, but I think first simply going through the history and we've got some folks coming in and out of the office, that's fine. Simply going through the, uh, the history, um, and not necessarily your mindset, but eh, you know, how you approached each step along the way. The first step happens before you're there. So your predecessor, David Ogden, put out the Ogden memo, um, where were you in 2009 within the framework of your career when he put that out? A, I was a lawyer in private practice. I having largely a, a white collar criminal defense practice as well as a, uh, compliance and corporate counseling practice. I was the monitor for a large financial services corporation at the time and doing a lot of work on that and defending individuals and companies and saw it with, uh, some interest.

Speaker 1: You did notice, I noticed that there was something that came out about it, but, uh, I didn't look at it too carefully. Okay. Well, the precursor to that would have been, um, you know, the attorney general himself say focusing on, uh, we're really going to concern ourselves with folks that are masquerading as a, you know, a medical dispensary. So as opposed to the medical dispensaries themselves, he said that in March of 2009, I think ogden follows with the memo. Right. And I think that there was a probably with certainly when I came into the department in 2011, there was a sense that the Ogden memo had been overread. Okay. Well, and what did it say as far as you're concerned? Well, in essence, yeah, as far as my reading of it indeed is that it said, look, there are people who truly have medical needs for marijuana and there are caregivers of those people who helped provide them with marijuana.

Speaker 1: These are not people who have medical conditions that are genuine. These are people with Glaucoma, with cancer who are in chemotherapy who have genuine documented need for this. Right. And the memo basically said as to those people, it is not a productive use of the time of the and the resources of the Department of Justice to prosecute them. So we won't. It literally says cancer. And uh, it, uh, I, I, if, if I May, I read it a few times. It says it's likely not a good use of resources. Efficient use of resources. Correct. It's very hedged and very qualified, but it's also really focusing on people who are genuinely sick indeed and their carrier and their caregivers basically saying if, if a good close friend of mine or a relative of mine is really in distress, they're going through chemotherapy. The only thing that can help them however is marijuana, than if I somehow go out and procure it for them.

Speaker 1: And that's all I ever do. I shouldn't be prosecuted. Right. Simple, right? Simple. Straightforward. Correct. People were reading a little bit more into that, weren't they? They were, they were reading into it. As long as you are in compliance with state law period, you're going to be okay with the United States Department of Justice. And the memo didn't say that. So you come in in 2011 hydro. And how quickly did you ride Cole? Memo one, which most people forget by the correct. Uh, it was fairly early on. It was, um, I started hearing from us attorneys and from the executive office of us attorneys that there was this concern in the community and the law enforcement community that the Ogden memo was being over. People were taking it as a defense. People were using it as a policy discussion and trying to talk the department on a prosecuting their clients and they said it needs to be rewritten to emphasize what it does and does not cover so that we clear the air and have a more straightforward policy so people can understand it.

Speaker 1: And that's fair. And so now I understand the last paragraph of a Cole memo, one, which is where you say this can't be used as a defense. Correct? All of the memos, right? Exactly. Even Cole memo to says, this doesn't create any rights. It's got to be used as a defense. And that standard in virtually every policy memo in the Department of Justice. So, so basically you put out this bummer of a memo, Jim, right, in 2011, I prefer to call it a realistic, just kind of resetting the boundaries of, hey, we're not talking about commercial grows, we're certainly not talking about a warehouses and you know, we're, we're talking about still patients and abiding by kind of a, would you call them eight principles or uh, you know, they, they weren't listed as concisely as they are Cole memo too, but it's kind of looking towards what is the role of the federal government in this space and the role of the federal government in this space is to determine what actually harms the community and then use our federal law enforcement resources to correct those harms and to go after those arms. Right?

Speaker 3: So, uh, not a listed specifically. We'll get to Cole memo to in just a bit, but, uh, because that's, that's everyone's favorite. Uh, but you know, are we harming children? Are we engaging in cross a state border trade? Are We, you know, is there a violence and danger involved, those kinds of concepts.

Speaker 1: James m cole,

Speaker 2: US Deputy Attorney General Jim Cole joins us to discuss the history around the three coal memos. Welcome to cannabis economy. I'm your host Seth Adler. Check us out on twitter, facebook, instagram, and our new youtube channel with a handle can economy that's to eds and the word economy. Not sure how you're accessing this, but please know that you can get us through the new cannabis economy app in Itunes, the itunes podcast APP and Google play. Mr Cole takes us through the under appreciated Cole Memo One, the celebrated Cole memo and the Cole memo three, which was released of course in concert with Vince and guidance from the US Treasury. It was an honor to speak with Jim and I very much appreciate his time. Jim Cole on the Cole memo.

Speaker 1: All right. I am sitting in front of a former deputy attorney general of the United States of America, James m cold. Jim, thank you so much for having us in and thanks for inviting. So, um, there are so many questions, but I think first simply going through the history and we've got some folks coming in and out of the office, that's fine. Simply going through the, uh, the history, um, and not necessarily your mindset, but eh, you know, how you approached each step along the way. The first step happens before you're there. So your predecessor, David Ogden, put out the Ogden memo, um, where were you in 2009 within the framework of your career when he put that out? A, I was a lawyer in private practice. I having largely a, a white collar criminal defense practice as well as a, uh, compliance and corporate counseling practice. I was the monitor for a large financial services corporation at the time and doing a lot of work on that and defending individuals and companies and saw it with, uh, some interest.

Speaker 1: You did notice, I noticed that there was something that came out about it, but, uh, I didn't look at it too carefully. Okay. Well, the precursor to that would have been, um, you know, the attorney general himself say focusing on, uh, we're really going to concern ourselves with folks that are masquerading as a, you know, a medical dispensary. So as opposed to the medical dispensaries themselves, he said that in March of 2009, I think ogden follows with the memo. Right. And I think that there was a probably with certainly when I came into the department in 2011, there was a sense that the Ogden memo had been overread. Okay. Well, and what did it say as far as you're concerned? Well, in essence, yeah, as far as my reading of it indeed is that it said, look, there are people who truly have medical needs for marijuana and there are caregivers of those people who helped provide them with marijuana.

Speaker 1: These are not people who have medical conditions that are genuine. These are people with Glaucoma, with cancer who are in chemotherapy who have genuine documented need for this. Right. And the memo basically said as to those people, it is not a productive use of the time of the and the resources of the Department of Justice to prosecute them. So we won't. It literally says cancer. And uh, it, uh, I, I, if, if I May, I read it a few times. It says it's likely not a good use of resources. Efficient use of resources. Correct. It's very hedged and very qualified, but it's also really focusing on people who are genuinely sick indeed and their carrier and their caregivers basically saying if, if a good close friend of mine or a relative of mine is really in distress, they're going through chemotherapy. The only thing that can help them however is marijuana, than if I somehow go out and procure it for them.

Speaker 1: And that's all I ever do. I shouldn't be prosecuted. Right. Simple, right? Simple. Straightforward. Correct. People were reading a little bit more into that, weren't they? They were, they were reading into it. As long as you are in compliance with state law period, you're going to be okay with the United States Department of Justice. And the memo didn't say that. So you come in in 2011 hydro. And how quickly did you ride Cole? Memo one, which most people forget by the correct. Uh, it was fairly early on. It was, um, I started hearing from us attorneys and from the executive office of us attorneys that there was this concern in the community and the law enforcement community that the Ogden memo was being over. People were taking it as a defense. People were using it as a policy discussion and trying to talk the department on a prosecuting their clients and they said it needs to be rewritten to emphasize what it does and does not cover so that we clear the air and have a more straightforward policy so people can understand it.

Speaker 1: And that's fair. And so now I understand the last paragraph of a Cole memo, one, which is where you say this can't be used as a defense. Correct? All of the memos, right? Exactly. Even Cole memo to says, this doesn't create any rights. It's got to be used as a defense. And that standard in virtually every policy memo in the Department of Justice. So, so basically you put out this bummer of a memo, Jim, right, in 2011, I prefer to call it a realistic, just kind of resetting the boundaries of, hey, we're not talking about commercial grows, we're certainly not talking about a warehouses and you know, we're, we're talking about still patients and abiding by kind of a, would you call them eight principles or uh, you know, they, they weren't listed as concisely as they are Cole memo too, but it's kind of looking towards what is the role of the federal government in this space and the role of the federal government in this space is to determine what actually harms the community and then use our federal law enforcement resources to correct those harms and to go after those arms. Right?

Speaker 3: So, uh, not a listed specifically. We'll get to Cole memo to in just a bit, but, uh, because that's, that's everyone's favorite. Uh, but you know, are we harming children? Are we engaging in cross a state border trade? Are We, you know, is there a violence and danger involved, those kinds of concepts.

Speaker 1: Are we funding cartels and gangs? Are we doing environmental damage by growing in, in federal forests and state forests and things of that nature because there's a number of those that existed that really diverted water sources. It polluted. It was an environmental nightmare. Um,

Speaker 3: so you put that out, uh, and then it is two years, uh, until the next memo and a substantial amount of, uh, happened, uh, in the industry between 2011 and then the summer 2013. Obviously there's a boat I'm in, you know, at the end of 2012. Before that vote, what had you noticed, if anything, you know,

Speaker 1: there were still issues going on as to whether there was any sort of uniformity and enforcement approach among the US attorneys, different US attorneys had different priorities in their districts and they're allowed to. That's part of the health healthy aspect of our system. But at times you would ask us attorneys, why are you going after this one entity? And they'd say, just because it's big, a high question. Well, what besides big are they doing that's harmful?

Speaker 3: Because you did mention size in coal memo one. Correct. And so that was an element of confusion on both sides,

Speaker 1: right? That's right. And we also talk about it in Cole memo to sure that size isn't a proxy for doing these hearts.

Speaker 3: Well, I feel like you're clarifying it into. Right. Um, so, so that, those are the calls that you're getting, um, when the vote happens in, in Colorado and Washington. Now this is a personal question.

Speaker 1: Were you surprised? Uh, yes and no because you saw the growth in medical marijuana that was taking place and it seemed to me just reading history and reading the history of prohibition that this was very much a natural progression. So as you saw that prohibition started to be whittled away through medical use and religious use. You saw the same thing's happening with marijuana are nominally medical use eventually leading to state by state in this instance as opposed to a federal constitutional amendment. People saying, I'm not sure we want to make it illegal in our state anymore recreationally, so we're going to do something about it. It was a sea change. It was the first time that it had been done for a nonmedical use. So that was a bit of a surprise, but it, it didn't come out of nowhere.

Speaker 3: Certainly. And you know, each memo that we're talking about Ogden than a Cole memo, one a are dealing with medical marijuana, are dealing with the medical aspect of it. Uh, so we get the vote in a, in November. Uh, you, you, you do. Wait, it is August 2013, you know, uh, some eight, nine months later. What are you watching? What are you thinking? I'm in the ensuing months. How did we get to August 2013 where Cole memo to must come out?

Speaker 1: Well, I'm not sure it needed. It had to be a must come out in a situation. I think it was helpful that it came out. Uh, I'm hearing from the governors of Colorado in Washington about what is the federal law enforcement response going to be in their state. Will we prosecute simple possession cases in their state to which I responded, we don't prosecute simple possession cases on behalf of the federal government. We're not going to change that, right? We started to do a number of visits up on the hill with any number of members of Congress on both sides of the issue. Okay. Saying you need to allow this to go on and not preempt it. Others saying you need to come down like a ton of bricks. Right? Um, my general response there was, you're the ones who passed the laws. If you want to make a policy on this, please go ahead and pass a law that makes it clear.

Speaker 1: My job in the Justice Department is to enforce the laws that you make indeed. And you do even mentioned congress in each of the memos. Exactly. And so, so we're going through all of that and at the same time I'm starting to ask people in my office to do some legal research as to what are the options of the federal government under the law as far as preempting either the Colorado or the Washington laws. And there's several parts to those laws so we have to pick it apart and do a fairly thorough analysis to see what our options are before we can even decide which ones we want to pursue.

Speaker 3: So what is the construct that we could kind of enact even before deciding if we want to, where if we don't obviously. What did you find or what did your team find?

Speaker 1: Well, there, there's two pieces to these Colorado and Washington. The legislations, one is the decriminalization of marijuana in their states. And uh, the other is the establishment of a regulatory scheme to control it too taxing to ensure the quality of it to ensure it's not going to minors, all sorts of things of that nature. So what we basically learned the legal standpoint is that we could not preempt the decriminalization, the controlled substance act, which is the federal law, explicitly says that it does not preempt the field. It is not the sole law covering this for the United States of America and all the states. So the states are free to pass their own laws that are not in line with the federal law.

Speaker 1: So the other option would be whether or not those two laws can exist in tandem. How can they both write? Well, they can't. The federal government can choose to enforce the prohibition against marijuana and have drug enforcement agents and perhaps FBI agents than any other federal law enforcement arrest people for that. And the states don't have to. And the two can coexist quite well together. Okay. So there is no impossibility. There's no legal prohibition for those two laws as inconsistent as they may be to exist in tandem at the same time. And you're not being hyperbolic. When you say impossible, that's a specific word for you. It's a specific work. Right? And it's, it's, it has a legal connotation in Dayton. So the other part, which is the regulatory scheme. So we conclude that we can't stop the decriminalization. So then we say, well what about the regulatory scheme?

Speaker 1: And the lawyers who I had looking at this said it's not a slam dunk, but you've probably got a pretty good argument to preempt the regulatory scheme because it can promote the usage of drugs in violation of an in contravention of federal law. Okay, because it's encouraging the use, it's helping to facilitate the use and that can then be viewed as an impossibility to allow that scheme to exist with the federal prohibition. Okay, so we took a look at those options and thought, okay, so we have marijuana being legal under state law, but if we go to preempt the regulatory scheme, we are destroying any chance that the states have a regulating it, of taxing it, of making sure that it's pure, of keeping it away from children and keeping it away from cartels, keeping it away from violence, all the things we want to have done that we see as the dangers that come with it so that the.

Speaker 1: Those are the goals of the controlled substances act is in essence what you're saying. Well, you can read those in. Those are also policy goals. The controlled Substances Act is basically just saying you can't do drugs. You can't bind. You can't sell them. You can't use them. Okay. Those are the goals of the controlled substances act data. A lot of the reasons for it are the harms that are done and you can sit there and say, I'm going to be absolute. Nobody ever can use it, period. We have found an enforcement of those laws. There has to be some discretion in. There has to be some prioritization because you could use every resource that federal government has to go after each and every violation. We don't do that. Okay, so you don't do that. Um, and so it's, it's time to go find a pen.

Speaker 1: Well, it's tied to first come up with a thought that maybe yeah, maybe what we ought to be doing is allowing the states who had to be quite honest, the states had not had a very good track record of enforcing their own regulatory schemes under medical marijuana. There was a lot of complaints and a lot of controversy that there really was no enforcement scheme. It was just an excuse to let people smoke marijuana without much control. Interesting. So there wasn't a lot of faith in the fact that the states could be good enforcers in Colorado. They really didn't put much resources behind their enforcement scheme, so not much happen. So we started looking at what the options were going to be, where we want it to go. We're going to have to talk about the fact that you are a Jimi Hendrix fan later, but because that was your fault, that was probably everybody would think that was my thing.

Speaker 1: Go on. So we, uh, we were looking at that and saying, you know, how do we make sure that in fact, the states, if they're going to regulate it, do a good job of, yeah, that's one of the criteria we're going to be looking at and what are the harms that we really want to prevent? So we started coming up with a, uh, a working structure of, all right, we're going to give you states a chance to see if this is going to work. Go for it, go for it. But with some admonitions, indeed, here are the eight areas that we find at this point present the greatest dangers to the community for marijuana use. Now bullet pointed out for now bullet pointed out, so everybody understands and I'm telling all the US attorneys offices prosecute those cases. Yeah, absolutely. Go after, go after those cases.

Speaker 1: Not a problem with this as our policy indeed. It also says, look, if there's other reasons to prosecute that I can't envision right now, those are going to be worth talking about. It's not just preempting the field, but it also says to the states, look, you have a responsibility to control this because there is value in a controlled environment for all of this. All of these eight principles that we're trying to promote are promoted by a robust and effective regulatory scheme, and if you can't provide one, then we're going to have a problem or. Yeah, that's it. That's exactly it. I think it's even in the first paragraph, that regulatory framework, it must be there for the read on only if you have a substantial regulatory framework. Right, and if you don't expect to see us coming into your state and disrupting the whole thing, because all bets are off because we have to correct.

Speaker 1: Correct. Because we're going to do. We're going to enforce the law against these measures one way or another. Right. And if not going to do it, then expect us to come in and do it. A size also is a mentioned again in, in Columbine Motif. There's a lot in there in a, uh, you're a good writer. So I had very good people helping with that. Fair enough because you do also mentioned size. You do kind of go back to that, um, uh, Cole, memo one, a specificity which kind of, not everybody kind of got. So we're trying to basically say, look, just because it's big this, this could become an industry and just because something is big in the past it had been used as a proxy for determining that the problems that we wanted to prevent. We're coming along with it just because of size and we decided that's not necessarily a valid proxy anymore, just because it's big isn't enough.

Speaker 1: You have, how did you come to that? Why? Why specifically? Because if you start looking into some of the cases that we had looked at over time, um, and trying to see does bring with it those problems we were having trouble finding any evidence that correlated big to those problems right now, it doesn't mean that big means you won't have those problems. It just means it's not a proxy to tell you that that's happening. Right? Okay. Alright. So you clear that up. We have now the eight pieces that a absolutely need to be looked at and should be looked at. Um, we once again use the words likely not a, not likely, uh, a good, uh, an efficient use of resources, but it's only a guidance as you point out. So Leah Guidance, it's a policy memo. It is a, it's not firm and fast. There is room to make the case that other kinds of cases should in fact be done that aren't within those eight bullet points.

Speaker 1: And you have to leave a certain amount of discretion even when you have one of those dangerous president. How much is present? How serious a matter isn't, isn't worth prosecuting. Those are all. And what's the quality of the evidence? Can you actually make a case that'll stick in court? So speaking of that, maybe not, but I. my guess is that it is. It's not likely inefficient use of resources. Why? Why is it positioned that way? Every time that you think about prosecutorial discretion, there is not only aspects of fairness, but there's aspects of a recognition that you can't prosecute every case involving a violation of a federal statute that comes your way. If we deal with this, we're going to have to deal with all, not necessarily that, but where am I going to put the the few resources I am? What am I going to say to all the prosecutors that work for the Department of Justice? If you have a choice between this case and that kind of case, take the second kind because it's more important to us. It has greater harm involved. This is the same kind of thing that's sitting there saying marijuana usage that violates the controlled substance act that doesn't cover one of these eight points is probably not worth our resources because there's other things we can do that are probably greater harms to society that we ought to use those resources for where we should focus. Right.

Speaker 3: Okay. So Cole memo to comes out. Um, and you know, you said there could be an industry there, there was an industry there and it rejoiced. Uh, did, did you notice that? Did you notice? You know,

Speaker 1: uh, I certainly was aware that people were looking to get into the industry. There's no question about that. There were still huge questions about, have you gone far enough? Is this really good enough? Is this really gonna? Let us do what we want. The thing I probably did notice at first that, that made me happier as one night driving home, I'm listening to the radio and I'm hearing a report that the Sinaloa cartel for the first time had lost money bingo because the marijuana sales in the United States had dropped. And I thought this was part of the point,

Speaker 3: there you go, that the hairs on my neck went up just now. I'm sure they went up on your neck at that point,

Speaker 1: right? Yeah. Because this is what we're trying to do. We were trying to solve the problem. And part of the problem was money going to cartels, like the Sinaloa cartel, right? How do we stop that? And we were starting to have an impact.

Speaker 3: Seems to, it seems to be taking the first couple of steps. Uh, no doubt. Exactly. So, so that's August and we're making our way to January first 2014. I'm in other conversations. We get into the fact that Colorado did open doors to recreational use on January first. Washington did not. If you'd like to know more about that, please listen to some of the other episodes. But uh, but as far as January first is concerned and

Speaker 1: um, you know, how closely did you watch that? Well, you have to give these things time, right? So you can't start watching on January first and say, what's happening today? And let's monitor it tomorrow. You have to give these things time to actually become established and see what happens over a course of six weeks. Right? Well, more than six weeks. Well, but February 14th, 2014 I believe is Cole. Memo three with fincen guidance. Well, but that was something that we had been working on even before that. Okay. So when did you, so, so Cole memo to comes out, when did you start working on this coal man with Rayanne tandem with Department of Treasury, Fincen Guidance? Uh, I'd have to give you a specific date, which I can't, but I believe after the Cole memo came out and I testified in front of the Senate Judiciary Committee about it. Uh, and one of the things that I talked about during that hearing was we do need to get out a memo on banking because this isn't going to work very well unless you somehow solve the banking issue because there's a public safety issue involved in that with people having an enormous amount of cash.

Speaker 1: If you can't use banks, there is a taxing issue involved. And if people can't find a way to audit what the sales are, and at that time we were working with fincen and I believe I had noted to the committee that we were working on trying to get out another policy that would cover that area. So that was in the works for a while. So to talk about in the works for Awhile, uh, you know, who made the first call and, and how did you work together? I mean, this is, uh, Inter, uh, two different, uh, you know, groups working well in the government. No one would believe this, that this could actually happen. So, you know, what, in all seriousness though, how, how did that all happen? Well, you know, a lot of it came up first by talking about the concept, you know, and whether or not people had problems with it.

Speaker 1: We were throwing it out and giving what we thought were good reasons why we wanted to bring this within the banking system. Uh, we then contacted fincen and said, what are your views? Because you're going to be an important player in this. Indeed, there were conversations among my staff and fincen staff to tease out any issues and remarkably everybody was pretty much on the same line and on the same page on all of it. And then it was a question about how do you do it, what are the memos look like? Do they come out at the same time? What's everybody has to have a good chance to take a look at it. You have to vet it, you want a vetted sometimes with various groups, um, and then ultimately you through the logistics come out with it and you want to make sure that the administration is comfortable with it too because it's going to reflect administration policy.

Speaker 1: So those are the logistics. And, and, uh, the memos did come out on the same day. They do reference each other in, in writing, um, leading up to it what initially became, what was point number one that we know is going to be in there. Then point number two, what do we know? How did it develop a, it's, it's tough for me to go back in that level of nitty gritty detail. It is a while ago, it was awhile ago and largely it was a much broader perspective that we were having, which was we have to start getting the money off the streets. We really can't afford to have people engaged in a cash business that could generate this much cash. There's too many guns associated with that cash. Too much opportunity for robberies and burglaries, too much opportunity for innocent people to be shot and killed and if you're going to have a regulatory scheme, part of that scheme is taxes. Right, and how are you going to get a collection of those taxes unless you have a way to monitor it, like the money's going through the banking system. So the hope was to try and make sure those problems got solved with these memos. The details a really kind of wrote themselves in a certain way because the whole gist of both memos was if you are in compliance with the Cole memo, your not going to be prosecuted for money laundry. Right.

Speaker 3: Which is why some see it coming out on February 14th as a love note from both you and fits in exactly. Of course. So, uh, uh, so, okay, they're, there you have it. And then now the that comes, you know, that guidance comes out from a, well, the Coleman with infants and guidance comes out and some of those issues, as we talked about on my way in are still not solved, uh, are still not close to being solved.

Speaker 1: Right. And I think from what I read, yeah, since I left the government, is that the banking industry is still uneasy. They are quite concerned about the fact that the Cole memo is a policy level and that's all it is. It's not long, right? It is still illegal to use marijuana sell marijuana, cultivate marijuana is still illegal to process proceeds of marijuana. That is still money laundering. Right? And certainly the truth of any policy memoranda, if it's not law, is that if a new administration comes in, they can change it.

Speaker 3: So this gets to the point that these are guidance, uh, and they are policy memos as opposed to being a loss, right? Uh, and lawmakers make laws. That's congress. That's correct. Um, I, uh, my, one of my questions, uh, that I wonder about is the executive branch, let's say you have an outgoing, um, executive, um, is there a, some sort of executive order that, uh, that he could write if, if the president were male at the time, um, which would maybe clear everything up.

Speaker 1: Uh, an executive order lasts only as long as the next president decides to let it last. It is the same thing. It's a policy memo. Okay. It has a little greater force and, uh, and heft than a memo from the deputy attorney general, right? All modesty. But it is in the end, nothing more than a policy memo of how the government will be operating within the laws that existed at the time.

Speaker 3: Okay. So that's not the answer we were hoping for, but, uh, that, that, that is what it is. Um, so at this point I want to talk about the fact that I'm not everybody becomes the deputy attorney general of the United States of America. Uh, you were in that position. How does that happen, Jim? Uh, I'm not sure. I was kind of sitting around minding my own business one day when I got a call to combine interview about good job. Okay. Uh, you know, I, I think some of it,

Speaker 1: uh, not, not to be too facetious about it, some of it is I'm kind of keeping your head down and doing a good job and having some things that you've done in your life that

Speaker 4: are useful in that regard. Okay. Uh, knowledge of how the United States Congress works, a knowledge of how criminal law enforcement works and knowledge of how the Justice Department works. One of the things that I think was a very important hallmark of the Obama administration is that a lot of the people who were us attorneys and who were the upper echelons of the Justice Department were all former prosecutors and for more than just a year or so, they had been federal prosecutors or stem state prosecutors for years. So they knew the territory. They knew it very well. They weren't putting as political people they were putting in as professionals. And, uh, I, I'd like to think that that was part of what put me in the running to become the deputy attorney general was just my long history in working both at the department and working in criminal law issues. Even when I was in private practice.

Speaker 4: You don't, uh, come off as much of a political figure. It's, it's more of a policy person. I feel like I'm sitting in front of, um, where does that come from? You know, where did you grow up? And I grew up in Chicago. Well, what were your parents like? Their Chicago. My father was a businessman. My mother was at a traditional housewife. Both were great parents, uh, encouraged us all to do a whatever way, whatever was going to make us happy in life. When, when did, uh, those two things intersect, you realizing that being happy might have to be with you being a lawyer. Uh, you know, it's, it's, it goes back quite a ways. Uh, I think I started a many, many years ago in high school being influenced by the antiwar movement at the time the Vietnam War was going on, instead of just yelling and screaming and protesting, I took a course and became a draft counselor through the American Friends Service Committee.

Speaker 4: Do something about it, I can admit now was next to practicing law without a license, but you would advise people on what their rights were under the selective service act and help them through that labyrinth shirt. And it started to become interested in what you could do with the law. They could be social socially useful and actually accomplished something as opposed to just yelling and screaming and complaining, right? Here's where the rubber meets the road of what we're talking about. Here's what I can actually do about it, right? Here's something that I can do to make a difference. Uh, as I went through college, I got an internship with the district attorney's consumer office in Denver and did consumer fraud. How ironic exactly. And uh, spent a couple of years both in college and then for time after college before I went to law school as a paralegal and investigator for that office.

Speaker 4: And again, learning what the power of the law can be, what you can do to use it as a tool to make people's lives better, to solve problems. Uh, then went off to law school where a hastings and cal in San Francisco, all right, graduated, got hired in the Attorney General's honors program by the Department of Justice, right out of law school. You through that program, go around the department for a year in the criminal division. And that landed in the public integrity section doing public corruption cases. As far as that placement though, that initial placement right after out of law school, how much of that is you being a good student versus hustle, which you had mentioned earlier in being a draft counselor? Uh, you know, I think some of it, I think some of it is being a good student. Some of it is, first of all, you have to get the interview.

Speaker 4: Sure. And, and that was a significant hurdle to overcome in the first place is there's a huge number of people apply for the program and then when you get an interview, it's trying to impress the person from the Department of Justice. That may be you could be an asset to the department. I think the fact that I had worked in law enforcement and worked in a district attorney's office probably helped distinguish me. Right. I've been on the ground, I've been on the ground, I've seen one of those offices look like I know how to make a criminal case. And I think that helped. I then got into the Justice Department and realized there was an enormous amount more I needed to learn about making it a criminal case. Right? And then trying it. So I think that helped. And certainly when you start in a program like that, it is a crash course when you get into the Justice Department that early in your career it's sinking or swimming right?

Speaker 4: And if you swim, they'll keep giving you better and better cases and you learn more and more and you progress much more quickly than you would in the private practice of load. And you did progress until, when did you kind of a leave, because you mentioned earlier that you had to come back in. So. Right. Well, uh, ultimately I became the deputy chief of the public integrity section. A tried a number of cases while I was there that we're a fairly high profile. I tried a federal prosecutor. Okay. I tried a member of Congress and I try to federal judge look at that. And then that's the holy triumph for government. I think it's all three branches of government. Yeah. Uh, and then the last thing I did was take over as chief of staff on the House Bank investigation when there was the scandal of members of Congress cutting checks to the house bank. Amazing.

Speaker 4: Amazing. And so I went and did that and at that point, uh, got that up and running and then left the department and went into private practice. Uh, what was your focus in private practice? You were now the administration, what was your, uh, you know, kind of policy? Well, uh, in private practice I was basically trying to make a living, trying to figure out how to get clients and how to service clients and not too long after I was in private practice, I got a call from the house ethics committee, a asking if I would come by and talk about being the special counsel to investigate Newt Gingrich. Okay. So I went over, uh, it was basically a tax focused case. Now you didn't have much tax experience, but I had a lot of investigative experience and ultimately was picked to be the special. So, and did that for a little bit over a year.

Speaker 4: Amazing. And we know how that turned out. We know how that turned out. So there's bigger headline I think. Yeah. Um, what, what did that experience teach you or that composite, you know, those, those you're prosecuting, you're doing some big work there with some big people you had done so early on as well. What did that do to you as the way that you think about the law and the way that you think about prosecuting the law? Well, I think what it helps you to understand is not only is there the law, but there's the practical application of the law, right? Just because the law says a, B and c doesn't mean that's what's going to happen at the end of the day. You have to try and figure out what the impact of human beings will have on it because that's the practical application. You also have to figure out, particularly when you're working up on Capital Hill, how do you get people to understand what your point of view is?

Speaker 4: How do you take into account their point of view and how do you move things towards the resolution that you want to have done so with some compromise involved. And uh, at the end of the day, you can't just force your will on people, right? You have to find a way to bring them along so that they understand where it is you want to go. They buy into it and they join you in it. And that's a skill that takes patients indeed a, and you're talking about the application and kind of making sure that the job gets done. What about the other side of it? You know, the, the, the, uh, if I'm the president, it's legal. Uh, you were dealing with a lot of people that, that it seemed like we're acting with that kind of mindset of I'm very important. I'm probably not doing anything wrong. Well, that's probably one of the advantages of having spent 13 years in the public integrity section.

Speaker 4: Okay. Is that I ended up prosecuting and investigating a lot of very important people. And you didn't hold them in particular on anymore, right? You realize that at the end of the day, the law was far more paramount than the position. Justice is blind. Justice is blind and it's a nation of laws. Right? And so you start to realize you're just occupying that office. It may give you a certain level of power and discretion, but at the end of the day, the law is going to be bigger and the application of that law can bring you down so you couldn't have. You're going to have to actually fulfill your responsibilities in that position or you may have a problem and you ran into

Speaker 3: a couple of folks that, that did have a problem that you were able to identify. Exactly. And so you, you have to make sure that, uh, you know, you keep in perspective that just because they are very important people doesn't mean they're immune. Um, and it also, uh, you, you seem to take emotion completely out of every answer that you give. I'm not saying that you take passion out of it, but you do take emotion out of it. Um, when it comes to writing a Cole memo or you know, a prosecuting a, uh, you know, very well known figure, um, does that come from your parents said good parents. He was a businessman. She was a homemaker. But, uh, how, where does that level headedness come from? You know, I think some of it comes from just a realization that, um, particularly when you get into the law, it's all supposed to be,

Speaker 4: uh, to the large degree objective. You're not supposed to let your passions and your emotions get into it. The reason we have prosecutors to try and punish people who commit crimes is because we don't want the victim in charge of seeking retribution, right? Because that then is emotional and then you're not going to have as measured a sense of justice as you could if somebody who is less emotional approaches the matter, tries to look at what the facts are and the equities are on both sides and come to something that is just an equitable. If you remove yourself from that passion, it's a lot easier to try and figure out from both perspectives what the fair result should be,

Speaker 3: right? How, how should we, and how could we go about doing this as, as you, uh, took us through. I want to throw a curve ball of, uh, we have, uh, we're in an interesting point in time, uh, in that we have eight justices on the supreme court. I'm not asking you or your opinion at all here. I have a and I doubt you would give it to me if I, you know, whatever. But, uh, what, what can happen, what should we not, what should happen? Um, can we go for more than a year without a ninth? Justice? I think the answer's yes. Right. Can we, is it the way our government is supposed to work? No. Right. There is a reason why there is no, there is no constitutional mandate as to the number of Supreme Court justices. But there is Jeff. Dr Played with, by the way. Exactly. Yeah, but there is the wisdom of having an odd number because if you don't have an odd number, you have ties right? And then the court doesn't really speak right and it's important for that court to speak. So we've already experienced a couple ties. Um, you say it's important for that court to speak. What happens if we go through a year of ties, a talk about that word important that you're using? Well, there's any number

Speaker 4: of options depending on how the court wants to proceed. They could either send the case back for further development and not have it be a tie. They could. You can have so five threes and so there won't be a tie. Sure. You can have the tie, in which case the lower court opinion stands, but you still don't have a supreme court opinion. So another case in the future could come up on the same topic and be taken for review by the court, and the court would still then have an opportunity with a full compliment to make a ruling and to speak. But lots of times the cases that are selected are selected because they present an issue in a particularly good light for the resolution that needs to happen at the highest, at the highest level. So you're losing that opportunity. You may not have another case that comes along presenting the issue in as a, as thorough away that will allow the court to really deal with.

Speaker 3: So this, this kind of ties back to your, um, memos which focus on a congress and at the, at the onset, at, on each memo, they say, and we're here in DC, uh, you can, uh, you can hear, uh, the government working right outside. So it's states that Congress has, uh, you know, spoken and that, uh, this is what Congress thinks about marijuana essentially in the first paragraph of each one. Why? Why'd lay it out that way?

Speaker 4: Well, remember, this is a memo from the Department of Justice and the first thing you need to take into account is what's the long. Because part of what we do when we take our oath of office is we take an oath to administer and uphold the law. There's a lot of discretion that goes with that, but that is basically our oath. So you have to start with Congress is the Policy Center for the federal government. They have spoken, they have said this is illegal and there are reasons for it. You have to start with that in anything you do and recognize that because there in lies the basis of your responsibility as a prosecutor.

Speaker 3: Okay. So I have three final questions for you, which we ask everyone. Um, I, you know, I would love to talk to you about the presidential race. I feel like that's probably not a good idea. Um, although do you have thoughts? I have many thoughts, but for another time and indeed, um, and uh, you know, I, I really appreciate your, your time and for you doing this. Here are the three final questions that we ask everybody. I'll let you know what they are and uh, then I'll ask you them each one by one, what has most surprised you in cannabis? What has most surprised you in life? And then on the soundtrack of Jim Cole Life, and we heard some Jimi Hendrix before, but it might not be the track, the one song that must be on the soundtrack. First things, what has

Speaker 4: most surprised you, Jim Cole, about cannabis? Uh, I think that the explosion of legalization of cannabis, how fast it's happened. I, I always thought at some point the laws might get relaxed because, uh, again, just looking at the history of what happened with prohibition as a guide, but I think what I saw after Colorado and Washington was a real acceleration and I think that was the biggest surprise to see that acceleration. Uh, which is amazing to hear from you. What has most surprised you in life? I think what's most surprised me in life is that, uh, many times the things you want most in life that you don't get, only create better opportunities. What does we have to unpack that a little bit, so please let us know what that mean. What do you mean? What are you getting at there? Uh, there was a point in my life where I very much wanted to be a judge.

Speaker 4: Okay. And applied to become a judge. Uh, the Superior Court was very disappointed that I didn't become a judge and I thank God that I didn't because the opportunities that I've had and the things that I've been able to do and accomplish a have clearly outstripped that, not that being a judge is by any means a bad job. I have enormous respect and it's what made me want to become one. But through any number of pieces of serendipity, I was able to do things that far outstripped the opportunities that would have had a, I would imagine. I mean, you know, uh, we come at it from the coal memos, but there's also the, you mentioned the, the, the other's a Newt Gingrich and such. I mean, these are big things that have happened, uh, as well as the work we did at the Justice Department in Smart on crime, the work we did at the Justice Department on lgbt rights and equality.

Speaker 4: Let, let's let, let's do talk about at least a for, for a minute. Uh, each of those take lgbt first because there are parallels in the way the two movements see each other a talk about what your work there. Well, one of the first things that, uh, I had to deal with when I came to the department was what do we do about the defensive marriage act? And it was really quite a moment because there were a range of views within the department and within the administration. Um, it's a very complicated issue. It is one that was looking at do we decide to not defend it. And as we talked about our role as prosecutors is to defend and uphold the law. Right? There is a provision where the Department of Justice and the president can say, we believe this law is unconstitutional. They notify Congress and they say, we will no longer defend the law in court.

Speaker 4: Right? You still have to enforce it. Sure. Until the court says you're right. It's unconstitutional, but we're no longer going to argue that it is. So the question was, how do we get to that point? Is that the decision we want to make? And I think one of the things that impressed me, there's one weekend I'm sitting in my office. It was a very nice office built in the thirties fireplace, although it doesn't work in my office itself, beautiful pictures of attorneys general from the past paneling, all of this a couple of months into the job and I'm working over the weekend and I'm working through these issues and I start to realize in the 19 fifties there was somebody sitting in my office trying to figure out what the department's position should be on brown versus board of Education. Right? In the sixties they were dealing with cases on gender and national origin discrimination.

Speaker 4: Uh, this was the next issue, this was the next civil rights issue of our time and it had to be dealt with very seriously and you start tape, appreciate the historical perspective of it and that the decision that was made by the administration at that point in the department was, we believe it's unconstitutional. We're not going to defend it. It turned out to be the correct decision to both legally and policy wise. And what we didn't expect was how quickly this issue again exploded and was very, very resoundingly accepted by the public and by the country. It's over. It's so, yeah. What about smart on crime? This was one that, uh, again, both the attorney general, I coming from long involvement with the criminal justice system looked at and thought particularly when I looked at the bureau of prisons, we just had too many people in there and there were too many people in there that were there for way too long and for no good reasons for being there that long.

Speaker 4: And you start to unpack it and figure out why that's the case. And you go back to the mandatory minimums. The mandatory nature of the sentencing guidelines, the very, very strict enforcement of the drug laws back in the eighties and the nineties had people literally go into prison for life for a first offense, nonviolent drug case and saying, what are we doing? What is. This is crazy. Yeah, and so again, this took time to try and figure out how do you unpack this? Where's the right position to be, where the lines that need to be drawn, and it's both a fairness and an economic policy issue because we were drowning in the cost of running the bureau of prisons. It was almost a third of the Department of Justice Budget, just the bureau of prisons and we had to cut it because we were not getting anywhere and we weren't really doing anything very good for the inmates or their families through these intense and long incarceration period.

Speaker 4: Nothing productive occurring at all right? So we tried to figure out a way, what are we going to do going forward, which was we're not going to do mandatory minimums unless there's a good reason. We're not going to enhance sentences unless there's a good reason. It's not just automatic, and then we started the commutation policy to go back and look at the prior cases that had been done, but I know that the president just did another 61 commutations today. Today. Yeah. And really start to escalate and accelerate that through the system to find those people and say, we think you've done enough time. It's time for you to go write amazing. Uh, that really it's, it's a, it is amazing. Um, I guess it's time for that final question then, which, uh, which might be easy for you if we've got the soundtrack right of Jim calls life and there's only one so you can mention more if you'd like, but, but definitely mentioned one song that that's got to be on there on the soundtrack of a, of your life.

Speaker 4: The Times they are changing. Okay. So they consistently seem to continue to change is what's your point? Exactly. It's all about change and it's all about looking at situations and trying to figure out how should this be right? What's the right solution here? And try to change it for the better. Uh, what are your thoughts on the fact that Bob Dylan himself has said that he would not be able to write that song again? You know what, it was right for the time and it seems to have some lasting power. Yeah, fair enough. And I. Now we have to bring up, I think it was wind cries, Mary, that is your ring tone or a was little. We're a little. Excuse me. Okay. Uh, your favorite Hendrix album. Do you have one? Uh, you know, it's hard because there's so many songs from different albums that run through it.

Speaker 4: A axis bold as love was clearly a little wings on axis. Bold as love. Correct. As is, as is. Wind cries, Mary. We go. So, uh, he was truly one of the great guitarists of all time without question. My favorite a Jimi Hendrix song is the last song on that album. Bolt is love itself, right? Which is good, but you still have angel. Sure. Down the road there's a. and he does the best version of all along the watchtower overtime at to bring Dylan back into it. And Dylan has even acknowledged that it's hard not to. Right. Jim Cole, thank you so much. Thanks for the lesson. All right. Enjoyed it. And there you have Jim Cole,

Speaker 2: absolute pleasure and honor to interview him about the call memos and then the icing on the cake to talk to Kim call about a qme, Hendrix. Shame on me for Mr. remembering little wing as a. The wind cries, Mary, although you can't go wrong with either of them, really appreciate you listening. Hope you enjoyed Jim called on the Cole memo.

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Cannabis Economy is a real-time history of legal cannabis. We chronicle how personal and industry histories have combined to provide our current reality.