Legal options under a Trump administration: Q&A with attorney Henry Wykowski

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By John Schroyer

Now that questions have surfaced about the future of the industry under a potentially hostile White House run by President-elect Donald Trump, Marijuana Business Daily asked famed attorney Henry Wykowski what he believes the future holds for cannabis companies.

And by and large, Wykowski – arguably one of the most successful cannabis industry attorneys in history with landmark rulings over the federal government, including a major victory over the IRS in 2007 – was optimistic.

But there’s one key Congressional vote coming up, probably in December, that could prove critical for marijuana businesses, said the San Francisco-based Wykowski: the Rohrabacher-Farr Amendment to a federal spending bill, which needs to be approved again by Congress for the industry to retain protection from the U.S. Department of Justice. (Update: A vote on the spending bill to which the amendment would likely be attached may be delayed until next year, according to Politico.) 

What do you see as the most likely outcome of a Trump White House for the cannabis industry?

One of the things I think about as an attorney for the industry is, let’s say they appoint an attorney general who’s conservative, or even reactionary. How would that affect us? The effect is hard to evaluate, but I think that what we need to look at in terms of evaluating what’s likely to happen for cannabis is the budget that’s passed in December. The Rohrabacher-Farr Amendment for the last two years precluded the Department of Justice from prosecuting cannabis cases in states where cannabis is regulated. Now that will be brought up again with respect to the new budget, and what I want to look at is, number one, does it pass? Number two, does it have more support than it did last year when it passed? And that will give us an indication of what we can expect.

It also is worth noting that Congressman (Dana) Rohrabacher (R-California) is a very strong Trump supporter and that this amendment is very important to him. He’s very much pro-cannabis. As a matter of fact, (Rohrabacher) is the one who actually criticized people that were starting to change their mind about Trump when statements about how he treated women came out. So I think that that’s going to be an important indication, because if Congress tells the DOJ that it should not expend funds to interfere with regulated cannabis, then things might not change a whole lot, if at all.

Do you think the entire future hinges, at this point, on that Rohrabacher-Farr Amendment being included in the budget in December?

I don’t know that the entire future hinges on it. I think it’ll give us a strong indication of how Congress wants the DOJ to deal with regulated cannabis.

What do you think will happen if Trump appoints someone really anti-cannabis, like New Jersey Gov. Chris Christie or former New York Mayor Rudy Giuliani, to be attorney general? Do you expect another version of the Cole Memos, or something along those lines for the industry?

I wouldn’t be surprised if another memo was put out detailing the new DOJ’s attitude and game plan for cannabis. But if Congress tells them not to spend money in states where cannabis is regulated – unless they’re going after people who are not in compliance with state regulations – I think we’ll be in pretty good shape.

Because one of the things that we used in resolving the forfeiture cases (against three prominent California MMJ dispensaries) was saying to the U.S. attorney, “Well, if you pursue these cases in light of the budget restriction, we’re going to make a big deal out of that. We’re going to do something about that.” And we didn’t get so far as to what to do, but depending on how serious the case is, I could see filing an action asking the court to enjoin the DOJ from ignoring that section of the budget amendment.

In terms of big cases, I don’t really see anything big coming down.

The Rohrabacher-Farr Amendment specifically spells out medical marijuana, and not just marijuana use in general. So do you think it’s possible that the DOJ could take a hard line in terms of defining that, and say to states, “Sorry, you’re not allowed to have adult use. You can have medical, but you can’t have rec.” Is that a concern?

Sure. My job is to be concerned. I’m the ultimate pessimist. Nobody asks me to look at what could go right.

I think that (the eight cannabis wins on election night were) significant in that we now have over 20% of America living in states that have decriminalized cannabis (in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington State and Washington DC). They’ve made adult use legitimate. You have a lot of people saying, “This is adult use. This is no different than alcohol.”

First of all, if the Rohrabacher-Farr budget rider could be modified, I think that’s likely to happen now, because there are all these Congress members in states where they’ve permitted adult use.

What is the worst-case scenario for the industry?

That’s easy. The initiation of prosecutions under the Controlled Substances Act for possession and distribution of a controlled substance.

What do you expect is going to happen? Do you think it’s going to be the status quo for the most part across the nation, or will there be radical change in any direction?

I think the status quo will maintain. … The Justice Department has to look at the increasing acceptance of cannabis and think to itself, what benefit is there to interfering with this? Realistically speaking, if the DOJ tried to close down the cannabis industry, you think that people are just going to stop using cannabis? Absolutely not. It’s an invitation to the cartels in Mexico to come up and do business, re-establish themselves.

I think we’ve secured enough acceptance so that we can’t be ignored. They can’t just say, “We want to get rid of this.”

This interview has been edited for length and clarity.

John Schroyer can be reached at