Memo suggested
U.S. attorneys should generally “oppose motions seeking to expunge records related to pardoned marijuana possession convictions.”
Marijuana Moment
Former President Joe Biden didn’t just issue mass pardons for federal marijuana possession offenses during his term—his administration also ordered U.S. prosecutors to be “extremely cautious” about how to handle future cannabis cases, according to a previously unpublished guidance memo obtained by Marijuana Moment that has since been rescinded under the Trump administration.
The guidance, issued on February 26, 2024—which also had specific implications for medical cannabis patients in legal states and federal laws on gun possession by marijuana consumers—wasn’t publicized even as the then-president was campaigning for a second term that year. That’s despite Biden repeatedly touting the cannabis pardons and his directive for a federal review into marijuana that resulted in a recommendation to reschedule the plant.
But last month, the U.S. Attorney’s Office for the District of Wyoming disclosed that the guidance was rescinded in September, and it said cases involving marijuana would consequently be “rigorously” enforced on federal land.
In response to a Freedom of Information Act (FOIA) request, DOJ provided Marijuana Moment with the initial guidance and the notice of the rescission under President Donald Trump on Wednesday.
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.”
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