Marijuana Moment: Congresswoman Demands Details On Trump DOJ Marijuana Policy After Biden Guidance It Rescinded Is Revealed

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A Democratic congresswoman is demanding more information from the Trump administration about its current cannabis enforcement policy on federal lands after Marijuana Moment reported obtained documents showing that Biden-era guidance urging prosecutorial discretion was rescinded earlier this year.

The guidance from former President Joe Biden’s Department of Justice coincided with mass pardons for people who committed federal cannabis possession on or before December 22, 2023. It’s not clear why the document wasn’t publicized at the time, but its rescission under the Trump administration has created controversy.

Overall, the Biden administration memo, obtained by Marijuana Moment under a Freedom of Information Act (FOIA) request, ordered U.S. prosecutors to be “extremely cautious” about how to handle future cannabis cases following the former president’s clemency action.

But now, a key member of Congress—Cannabis Caucus co-chair Rep. Dina Titus (D-NV)—says the disclosure of the guidance and notice of rescission isn’t enough and she wants further clarification from President Donald Trump’s DOJ.

“The Trump Administration wrongfully rescinded Biden-era guidance that discouraged the prosecution of simple cannabis possession on federal property,” Titus told Marijuana Moment on Wednesday. “Still, my questions to Attorney General Pam Bondi from two weeks ago about how the Trump Administration plans to handle these cases remain unanswered.”

The congresswoman had sent a letter to Bondi last month asking for details on the apparent “reversal” of cannabis enforcement guidance after the U.S. attorney from Wyoming mentioned the previously unannounced move in a press release.

“This move is a step backward for commonsense cannabis policy reform and will further exacerbate the cycle of unfair prosecution and incarceration,” Titus told Marijuana Moment on Wednesday.

In addition to encouraging prosecutorial discretion for marijuana cases, the Biden-era guidance also had specific implications for medical cannabis patients in legal states and federal laws on gun possession by marijuana consumers. But the document wasn’t promoted by the administration at the time, despite Biden repeatedly touting the cannabis pardons and his directive for a federal review into marijuana scheduling.

Last month, the U.S. Attorney’s Office for the District of Wyoming disclosed that the guidance was rescinded in September, and it said cases involving marijuana would consequently be “rigorously” enforced on federal land.

The Biden administration memo advised prosecutors about the scope of the pardons, noting limitations of the clemency action and stressing that, while a pardon represents formal forgiveness for low-level cannabis cases that took place on or before December 22, 2023, U.S. attorneys should generally “oppose motions seeking to expunge records related to pardoned marijuana possession convictions.”

On multiple occasions, Biden misrepresented that part of the relief by suggesting that pardons would be accompanied by expungements of past records.

But those limitations notwithstanding, the guidance did advise federal attorneys that they “should move to dismiss all [marijuana] charges that are subject to the pardon proclamation”—and that they were further required to report to higher-ups in the Justice Department before pursuing certain additional cannabis-related cases.

“Because marijuana remains illegal under federal law, U.S. Attorneys retain the discretion to prosecute cases involving simple possession, use, or attempted possession of marijuana against individuals whose conduct was not covered by the pardon proclamation,” the document says. But, it continues, “U.S. Attorneys should be extremely cautious and measured in the exercise of this discretion.”

“Effective immediately, all charges of simple possession of marijuana and other charges where the underlying criminal conduct involves simple possession, use, or attempted possession of marijuana…may only be pursued with the approval of the U.S. Attorney or a supervisory AUSA designated by the U.S. Attorney,” the guidance states.

That discretionary policy and reporting requirement was explicitly rescinded in a more recent notice from Francey Hakes, director of the Executive Office for United States Attorneys (EOUSA) under the Trump administration, that was distributed to federal prosecutors on September 29 of this year, for reasons that remain unclear.

The message from the U.S. Attorney’s Office for the District of Wyoming about justifying increased enforcement in light of the rescission of the prior guidance adds to the uncertainty around how the current administration views its enforcement role as federal and state cannabis laws continue to conflict.

For example, the notice from Smith’s office comes just one day after Trump signed a key spending bill that contains provisions to ban consumable hemp products with THC—a move that industry stakeholders say would eradicate the market that’s emerged since the president signed the 2018 Farm Bill legalizing the crop during his first term.

Then there’s the ongoing marijuana rescheduling process that the president said in late August would be decided within a matter of weeks.

That still hasn’t come to fruition—and a White House spokesperson told Marijuana Moment last month that “there is a process ongoing regarding the Notice of Proposed Rulemaking on rescheduling marijuana from May 2024 and all policy and legal requirements and implications are being considered.”

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Trump endorsed rescheduling—as well as marijuana industry banking access and a Florida adult-use legalization initiative that ultimately failed—on the campaign trail ahead of his election to a second term. But when he was pressed on the status of the rescheduling process in mid-August, he was less clear about his personal stance.

The administration was “only looking at that” reform, and it’s too “early” to say how the issue will be decided, he said at the time, adding that “it’s a very complicated subject.”

Meanwhile, top White House staffers under the Biden administration recently shed new light on the mass marijuana pardon and cannabis rescheduling process they helped facilitate, revealing the extent to which they were involved in broader clemency actions that are now under scrutiny by GOP leaders.

Also, as the marijuana rescheduling proposal awaits action, some GOP members of Congress have been urging Trump to move forward with the reform—with one lawmaker taking a jab at Biden by joking that it’s possible the prior administration “must have not been able to find the autopen in time” to complete the cannabis reform process it initiated.

Separately, the president in October posted a video on his Truth Social platform promoting the health benefits of cannabis—suggesting that covering CBD under Medicare would be “the most important senior health initiative of the century.”

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