Prosecutorial indiscretion: marijuana and immigration

On Thursday, a house panel recommended that Attorney General Eric Holder be held in contempt of Congress regarding his refusal to comply with Congress' subpoena for documents relating to Holder's actions in the "Fast and Furious" arms scandal that came to light when a weapon that the ATF had "walked" ended up killing a border patrolman.

In recent months, the Obama administration, with Holder as its representative, has ramped up efforts to forcibly close medical marijuana dispensaries that comply with state law and to arrest, prosecute and imprison the people involved. They have taken a scattershot approach, targeting not only medical marijuana sellers, but also cultivators, teachers, activists, landlords, tax advisers and even attorneys.

If it was not already crystal clear that the war against drugs is really a war against thought, the recent raid of the marijuana college Oaksterdam University illustrates that Orwellian reality.

The raid infuriated many in the medical marijuana community. Oaksterdam did not sell or distribute marijuana, but rather taught classes to interested citizens who wanted guidance on helping medical patients while following California's marijuana laws. The government targeted Oaksterdam precisely because of the politically incorrect content of the information it disseminated.

Undercover FBI agents have reportedly conducted sting operations targeting California attorneys who dare to advise their clients about how to comply with the state's medical marijuana laws. Apparently, the agents attempt to meet with attorneys under the ruse of obtaining advice on operating medical marijuana dispensaries, seeking to ensnare attorneys that may be aiding and abetting in (federally) illegal dispensary activity. If these actions targeting universities and attorneys do not violate the First Amendment and the right to legal representation, they certainly tread the line.

This aggressive drug-warrior approach has mystified those who relied on earlier statements from President Barack Obama and his surrogates maintaining that he would use his prosecutorial discretion to leave medical marijuana be.

On the campaign trail in 2008, candidate Obama said numerous times that, if elected, he would not use federal resources to prosecute medical marijuana cases.

In 2009, Holder issued a formal memo stating that the Department of Justice had no plans to prosecute dispensaries that are operating legally under state laws.

Three years later, many decent, law-abiding, family-oriented people who relied on these statements and became involved in California's medical marijuana industry now find themselves in federal prison or in federal court facing stiff mandatory minimum sentences and even life sentences.

In a recent Rolling Stone interview, Obama suggested that the DOJ is only prosecuting individuals that provide marijuana not only to medical patients, but also to recreational users without doctor's recommendations. And Holder recently testified at a congressional hearing that the DOJ is only targeting dispensaries that violate state law.

As attorneys who regularly handle federal marijuana cases, we know that these statements from Obama and Holder are not true. The state Court of Appeal has repeatedly made clear that medical marijuana dispensaries are legal, and the DOJ is doing everything in its power to shutdown non-profit dispensaries that do nothing more than provide marijuana to patients.

Obama has made numerous recent trips to California, holding glitzy fundraisers in Beverly Hills and San Francisco. Instead of using our state merely as his re-election piggy bank, it would be nice for him to take a few moments to visit with some of the patients who feel betrayed by his administration's approach to medical marijuana, and to address the human toll of his marijuana policies.

On June 15, Obama stated that he would use his prosecutorial discretion to refrain from deporting certain illegal immigrants who arrived here as children, even though they are in violation of federal law. Those encouraged by this announcement should study his track record on medical marijuana, and wonder whether he will soon be raiding schools and conducting sting operations on lawyers who advise young people on how to take advantage of this new immigration "policy."

The Fast and Furious gunrunning scandal, with whispers of cover-ups and assertions of executive privilege, has caused a further erosion of confidence in the DOJ. Obama has admitted to significant personal involvement with marijuana and other drugs in his past; perhaps this country would be a more just place had he been prosecuted and imprisoned under his own favored drug-warrior policies.

We hope that Obama changes course and realizes that, if nothing else, his stance on medical marijuana - a non-lethal medicine - and simultaneous support for his attorney general's bloody policies, could lead to his political undoing, one way or another.

President Obama has the power to direct Attorney General Holder to reschedule or de-schedule marijuana, and we hope he chooses the latter. And by the way, to do this, he would neither have to issue an executive order or invoke executive privilege.