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Pot Debate Latest Complication for Replacing U.S. Attorneys

Gardner has concerns about process in Colorado, which still has no nominee

A standoff over marijuana guidance for federal prosecutors between Attorney General Jeff Sessions and pot-friendly states like Colorado is complicating efforts to fill the ranks of U.S. attorneys. (Bill Clark/CQ Roll Call file photo)
A standoff over marijuana guidance for federal prosecutors between Attorney General Jeff Sessions and pot-friendly states like Colorado is complicating efforts to fill the ranks of U.S. attorneys. (Bill Clark/CQ Roll Call file photo)

Attorney General Jeff Sessions might soon find himself working with court-appointed U.S. attorneys, in part because his hard line on marijuana is throwing a wrench in the nominations process.

Sen. Cory Gardner, a Colorado Republican, met with the attorney general last week to voice concerns after the Justice Department reversed course on an Obama-era policy and allowed federal prosecutors wider discretion to pursue criminal charges related to marijuana — even in states that have legalized it for medicinal or recreational purposes.

Colorado is one of those states. For the Trump administration, the conflict is shaping up to be a headache, as members of his own party threaten to stonewall his nominations.

Gardner said in a Jan. 4 statement that he intended to use leverage available to him as a senator to get reassurances from Sessions on marijuana.

Watch: Gardner Rails Against Sessions’ Marijuana Action as States’ Rights Issue

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“I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation. In 2016, President Trump said marijuana legalization should be left up to the states and I agree,” Gardner said in a statement.

More discretion for federal prosecutors means higher stakes, Gardner said.

“We had, obviously, expectations that they would name a U.S. attorney for Colorado,” Gardner told Roll Call. “I think this decision by the attorney general certainly puts into question a number of U.S. attorneys’ appointments, particularly now that a states’ rights decision is going to be left to a federal official with no clear guidance as to priorities for enforcement.”

The District of Colorado is one of numerous places where President Donald Trump has not nominated anyone to serve as U.S. attorney. Bob Troyer, who had been the acting U.S. attorney since 2016, was bumped up to an interim designation in November by Sessions.

The law under which Troyer was given the interim status provides a 120-day window before the local federal court gets to intervene and make an appointment to the U.S. attorney post.

The Colorado deadline appears to be in the middle of March.

Vacancy signs

The chief judge of the U.S. District Court for the Southern District of New York is already preparing for a similar possibility in late spring, with the state’s junior senator, Democrat Kirsten Gillibrand, planning to block interim U.S. Attorney Geoffrey Berman from Senate confirmation to the post.

Gillibrand’s office told New York media that she was not intending to return a blue slip for a Berman nomination to be considered by the Judiciary Committee, citing what she deemed an inappropriate effort by Trump himself to interview Berman for the Manhattan-based position.

“If (as appears likely) the office of United States Attorney remains vacant on that date, the Judiciary Act provides that this court may name someone to fill the office until such time as the President nominates and Congress confirms a new incumbent,” wrote Colleen McMahon, the chief judge in Manhattan, according to CNN.

Trump and Sessions dismissed 46 U.S. attorneys last March, in a move that was seen at the time as unusually abrupt.

In the Central District of California, the newly minted interim U.S. attorney is Nicola Hanna, a former defense attorney who was previously a prosecutor in both Los Angeles and San Diego in the 1990s. Hanna should, in theory, be able to win confirmation because she was recommended to the White House for nomination to the permanent role by Senate Judiciary ranking Democrat Dianne Feinstein

But it was clear after Gardner’s meeting with Sessions last week that the Colorado senator had given no such commitments, and his objection to confirming Trump Justice Department nominees seems likely to have bipartisan support.

Preparing the blockade

Gardner predicted the first move for interested members of Congress would be to seek to include limitations on marijuana enforcement in upcoming must-pass spending legislation.

“I think we now, our colleagues on the Hill, have to figure out an appropriations approach as well as possible longer-term legislation to address,” Gardner said.

Neither the Justice Department nor the White House had any immediate response when asked about potential action through the appropriations process or about potential extended delays in nominating and confirming U.S. attorneys.

Among the Colorado Republican’s roles is that of chairman of the National Republican Senatorial Committee. Some Republicans, including incumbent Nevada Sen. Dean Heller, have already come under fire for supporting the Sessions nomination given his long-held views on marijuana and for not responding forcefully enough to the marijuana directive issued earlier this month.

But Gardner said he did not envision criticisms getting very far, as long as elected officials side with the will of their states, especially when marijuana legalization has come directly from voters.

“If the member of the Senate, if the member of the House, is in a position that represents the will of the voters, I have a hard time believing how it will be used against them,” Gardner said.

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