Cole Memo Rescission (2018)

Background: what the Cole Memo actually did

The original Cole Memorandum, issued August 29, 2013 by Deputy Attorney General James M. Cole, was internal Department of Justice guidance to all U.S. Attorneys ^[1]. Cannabis remained (and remains) a Schedule I controlled substance under federal law, so the memo did not legalize anything. What it did was list eight federal enforcement priorities — preventing distribution to minors, preventing revenue from going to criminal enterprises, preventing diversion to non-legal states, and so on — and instruct prosecutors to focus on conduct that implicated those priorities rather than on state-licensed cannabis activity that didn't ^[1].

This guidance gave state-legal cannabis businesses in Colorado, Washington, and later other states enough cover to operate, attract investment, and build supply chains, even though every transaction was technically a federal felony. Banks still mostly refused to serve them, partly because the Cole Memo was guidance, not law, and could be withdrawn at any time ^[2].

January 4, 2018: the rescission

Attorney General Jeff Sessions, a longtime cannabis prohibitionist, issued a one-page memo titled 'Marijuana Enforcement' on January 4, 2018 ^[3]. The memo rescinded the 2013 Cole Memo, the 2014 Cole Memo addressing tribal lands, the 2009 Ogden Memo on medical marijuana, and related guidance. In their place Sessions reaffirmed 'previously established prosecutorial principles' — meaning U.S. Attorneys should weigh federal law enforcement priorities, the seriousness of the crime, deterrent effect, and resources, with no special carve-out for state-legal cannabis ^[3].

The timing was pointed: California's adult-use market had opened three days earlier, on January 1, 2018. Cannabis stocks dropped sharply that day, and industry groups warned of a coming crackdown ^[4].

What actually happened next

Very little, in operational terms.

Most U.S. Attorneys in legal states publicly signaled they would not change priorities. Bob Troyer in Colorado said his office would continue focusing on the same conduct as before ^[4]. Andrew Lelling in Massachusetts and Annette Hayes in Washington issued similar statements. No wave of federal raids on state-licensed dispensaries followed.

Two structural reasons explain this. First, the Rohrabacher–Farr amendment (later Rohrabacher–Blumenauer, now Joyce amendment), a rider attached annually to federal appropriations bills since 2014, prohibits the DOJ from spending funds to interfere with state medical cannabis programs ^[5]. The Ninth Circuit confirmed in United States v. McIntosh (2016) that this bars prosecution of individuals complying with state medical cannabis law ^[6]. Sessions could not undo a statute with a memo. Second, federal cannabis prosecutions had already shifted overwhelmingly toward interstate trafficking and illicit grows, not state-licensed operators — the Cole Memo had largely codified existing prosecutorial practice ^[2].

Senator Cory Gardner (R-CO) publicly fought the rescission and reportedly extracted a commitment from President Trump in April 2018 that Colorado's industry would not be targeted, in exchange for releasing holds on DOJ nominees ^[7].

Long-term consequences

The rescission's real effects were financial and political, not prosecutorial.

• Banking: The 2014 FinCEN guidance on serving cannabis businesses technically referenced the Cole Memo priorities. FinCEN clarified the guidance remained in effect, but many banks became more cautious, and the SAFE Banking Act remained stuck in Congress ^[2].
• Listings and capital: Major U.S. stock exchanges continued refusing to list plant-touching cannabis companies, pushing them to Canadian exchanges. The rescission was cited as a reason for this conservatism.
• Successor policy: Neither Attorneys General William Barr, Merrick Garland, nor anyone since has issued a formal replacement. Garland told the Senate Judiciary Committee in 2021 that prosecuting state-legal cannabis was 'not a useful use' of DOJ resources, but did not reinstate written guidance ^[8]. The Cole Memo's status is therefore: rescinded, not replaced, with de facto non-enforcement against state-legal operators.

Myths and folklore

Several stories about the rescission have hardened into industry mythology and are worth correcting.

• 'Sessions launched a federal crackdown on legal cannabis.' He did not. No state-licensed dispensary was raided by federal authorities specifically because of the rescission. Strong evidence
• 'The Cole Memo made state cannabis legal under federal law.' It never did. It was non-binding internal guidance. State cannabis activity was a federal crime in 2013, in 2017, and remains one today. Strong evidence
• 'Rohrabacher–Blumenauer protects the whole industry.' It only protects medical cannabis programs, and only as long as Congress renews it each year. Adult-use operators rely on prosecutorial discretion, not statute. Strong evidence
• 'Garland reinstated the Cole Memo.' He did not. No written replacement exists as of this writing. Strong evidence

Sources

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