"Know what I think?" he adds. "Barack Obama and Eric Holder are lying sacks of shit."
Most Democratic politicians swing to the center when taking their games national. One of Obama's sharpest shifts may have been on marijuana. There was a time when he thought pot should be decriminalized — sort of. "The war on drugs has been an utter failure," the newly elected senator told a Chicago audience in 2004. "We need to rethink and decriminalize our marijuana laws." That remark drew a smattering of applause before he amended it with, "but I'm not someone who believes in legalization."
Frank Gaglione
Medical cannabis patients from Axis
of Love hold a rally in Civic Center Plaza before heading to court for a motion hearing in USA vs. Feil.
Frank Gaglione
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On the presidential campaign trail in 2008, Obama displayed a "practical view, more than anything else," he said, when asked about medical pot when he and Hillary Clinton were jockeying for liberal votes. If his position had shifted, he said, it was still one from which he could still dispense his favorite tonic — hope — to medical marijuana users. "If it's an issue of a doctor prescribing medical marijuana to a glaucoma or a cancer patient... really, there's no difference between that, and the doctor prescribing morphine or anything else," he said. Spending "political capital" on marijuana reform was "not likely ... but what I'm not going to be doing is using Justice Department resources to circumvent state law on this issue."
It wasn't long into the administration — February 2009 — before Obama and Holder were forced to address the marijuana question again. A few weeks earlier, the DEA had raided four California pot clubs. "Was that a decision by you, by the Justice Department?" a reporter asked Holder. "As a prediction of policy going forward, do you expect those sorts of raids to continue?"
The attorney general had an answer ready. "What the president said during the campaign, you'll be surprised to know, will be consistent with what we'll be doing here in law enforcement," he replied. "What he said during the campaign is now American policy."
The media reacted. "DEA to end medical marijuana raids," MSNBC reported the following day. "U.S. to yield marijuana jurisdiction to states," a report in the Chronicle read, in which a White House spokesman was quoted as saying, "The president believes that federal resources should not be used to circumvent state law."
Smokers and squares alike loved what they heard. "February 25th, 2009," wrote Russ Belville, outreach coordinator of the National Organization for the Reform of Marijuana Laws (NORML). "Mark it as the day on your calendar when the beginning of the end of adult marijuana prohibition happened." Even Sen. Barbara Boxer (D-Calif.) was feeling it. "It's good news for people in California who are so ill that they have gotten a doctor's note in compliance with the law," she said "If you have a doctor's note, you should be able to get whatever medicine you need."
The change, however, was not in federal law — Congress declared marijuana a dangerous illegal drug in 1970, and so it remains — but in federal policy. Only marijuana operations in violation of both federal and state law would be on the feds' radar, as Holder told The Los Angeles Times in March 2009, which duly repeated the earlier headline, "Medical marijuana dispensaries will no longer be prosecuted."
A new day had dawned, though at first it was strangely similar to the old day. About a month after Holder's announcement, the DEA raided Emmalyn's, a San Francisco dispensary South of Market, for alleged problems with taxes (no charges have yet been filed). This was an indication that Holder's remark wasn't binding policy, even in San Francisco. It was merely a "sort of offhand comment," Russoniello told a UC Hastings discussion forum on medical marijuana shortly after the raid.
Other judges and prosecutors on all levels were similarly unmoved. Anyone trying to use Holder's statement as a legal defense was getting laughed out of federal court, according to one criminal defense attorney who asked not to be named. "They said, 'You can't rely on what some guy said at a press conference,'" he recalls.
Meanwhile, 2009 proved the biggest year on record for federal marijuana busts. In California alone, the DEA reported the seizure of 7.5 million illegal pot plants and 1,738 arrests, up from 5.3 million and 1,313 the year before. Some saw this as an aberration; Holder and Obama playing tough for the FOX News crowd. Meanwhile, Feil, who was waiting for the Ninth Circuit's decision on his forfeiture case, was raided by the DEA at his Lake County home for the dispensaries he'd run in Ukiah and Los Angeles four years earlier.
The administration still hadn't provided medical marijuana users with anything they could use in court. Then the Justice Department came back in October with a memo. Maybe this was finally it. "Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana," read the header for what was presented as "formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes." It was penned by Deputy Attorney General David W. Ogden — who would be out of the Justice Department and back in private practice within six weeks — and so became known in medical marijuana lore as the "Ogden memo."