DEA Judge Invites Prohibitionist Group To Explain Allegedly ‘Unlawful’ Talks With Agency Amid Marijuana Rescheduling Review

A Drug Enforcement Administration (DEA) judge is inviting the prohibitionist group Smart Approaches to Marijuana (SAM) to explain recent allegations that it was involved in “unlawful” communications with the agency as it considered the Biden administration’s cannabis rescheduling proposal.

Separately, the judge has denied a request from a cannabis and psychedelics researcher to postpone an upcoming hearing on the rescheduling issue.

On Thursday, DEA Administrative Law Judge (ALJ) John Mulrooney filed a supplemental brief in the marijuana case that concerns allegations from two cannabis organizations that certain DEA officials were unlawfully involved in ex parte communications with SAM, which has strongly opposed the government’s plan to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA).

The ALJ on Wednesday notified DEA that it was welcome to respond to the “serious” allegations. And on Thursday, it extended that invitation to SAM itself, requesting any voluntary responses from both parties by November 25.

The initial motion from Hemp for Victory and Village Farms “alleges, inter alia, that there have been improper ex parte communications between [SAM], a Designated Participant, and officials at the Drug Enforcement Administration,” the latest order says. “In light of these allegations and any potential impact on participation eligibility, SAM is likewise authorized to respond to the Motion.”

“As such, it is herein ORDERED, that in addition to the Government, should Smart Approaches to Marijuana (and by this order only that Designated Participant) elect to respond to the Motion it may do so no later than 2:00 P.M. Eastern Time on November 25, 2024.”

Marijuana Moment reached out to SAM, but a representative declined to comment.

Meanwhile, in response to the underlying motion that challenges DEA’s role as a “proponent” of the proposed rescheduling rule, the official separately responded with a filing directed at the agency that expressed mixed opinions about the arguments.

The order emphasized that the case was unprecedented, with attorneys for the two cannabis organizations asking the DEA tribunal to “unilaterally remove the DEA, its counsels, and its Administrator” from the rescheduling process ahead of an initial hearing on December 2.

The petitioners have asked that DEA be replaced by the Justice Department or Hemp for Victory as the “proponent” of the rule.

In a historic first, it was Attorney General Merrick Garland—and not DEA Administrator Anne Milgram—who signed the proposed rule to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). The motion said that, as well as DEA’s apparent indecision on the proposed rule, warranted a change in the hearing structure.

The judge, in turn, said that the prospect of removing an agency head from rulemaking that it is responsible for overseeing would likely, “and correctly,” be deemed beyond the ALJ office’s jurisdiction.

“That said, this tribunal does retain sufficient authority and independence to tender recommendations to the Administrator, no matter what discomfiture those recommendations may inflict upon the Agency or its Leadership,” it said.

Mulrooney added that, even if the DEA “may not (yet?) be convinced about the correctness of the proposed rescheduling action pending a review of the recommended decision,” the “efficacy” of swapping the DEA head for a proponent who is “absolutely firmly entrenched in the one side of the issue” is “not altogether clear from the Motion.”

“But again, nothing is decided here,” he said.

Regardless of the potential efficacy of the procedural request, the DEA judge did say that, “on the other side of the coin, the allegations regarding alleged improper ex parte communications are serious, and the concomitant obligations to memorialize and report such communications set forth in the APA and the regulations are by no means couched in permissive language.”

That’s a reference to the motion’s allegations that DEA may have violated certain laws while conducting the rescheduling review, including “unlawful” communication with the prohibitionist organization SAM.

The filing included screenshots of social media posts where the group’s president, Kevin Sabet, indicated he had private conversations with DEA officials about the rescheduling effort as SAM rallied opposition to the reform and urged the agency to keep marijuana in Schedule I.

One week prior to DOJ’s publication of the proposed rule, Sabet posted on X that he could confirm Milgram wouldn’t sign the notice, citing “two confidential sources inside DEA and another outside DEA with intimate knowledge.”

In the meantime, the initial rescheduling hearing is still moving forward, with an initial preliminary meeting set for December 2. Mulrooney on Tuesday officially ruled on which of the agency’s 25 selected witnesses for the hearing will be able to participate, while laying out the procedure for the administrative process—including how pro- and anti-reform speakers will be able to cross-examine one another.

In a footnote of that order, the judge said he wasn’t convinced that the underlying argument about DEA’s role in the hearing merited consideration with respect to standing to participate. But he said the substance of the motion would still be considered separate from the witness selection order.

“The balance of this requestor’s arguments in favor of standing are wholly unpersuasive. To argue, at this procedural juncture, that the DEA is an improper advocate or sponsor of its own [proposed rule] adds nothing to the standing equation and (at least on the present record) presents little more than an ad hominem distraction from the important advocacy and adjudicative work to be accomplished in these proceedings,” Mulrooney’s order said.

But while the judge asserted that DEA issued the rule and is thus properly appointed as its sponsor, the agency did not in fact sign off on the rescheduling notice and raised a series of questions that signaled to many that it wasn’t on board.

Meanwhile, the DEA ALJ rejected a separate motion seeking to postpone the marijuana rescheduling hearing over the agency’s alleged “improper blocking” of witnesses, while arguing that the process should be halted at least until President-elect Donald Trump’s administration comes into power so it can review the rulemaking.

About a week after Panacea Plant Sciences founder and CEO David Heldreth filed a lawsuit in federal court, requesting an order halting the cannabis rescheduling proceedings, he submitted a motion to the DEA judge on Monday seeking a stay of the upcoming December hearing.

Mulrooney said that the “propounded basis for the requested stay is founded primarily on this absence from the [designated participant] roster, but is alternatively based upon his aspirational view that the impending change in presidential administrations might yield a more successful decisional structure.”

“Inasmuch as the Petitioner was not included in the Administrator’s Designated Participant list, and has not been admitted to the proceedings in some other manner, no action can or will be taken on his Motion to Stay,” the judge said.

Mulrooney separately rejected a veterans group’s petition to participate in the upcoming rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change.

For what it’s worth, Vice President Kamala Harris said recently that part of the reason for the delay in the administration’s marijuana rescheduling effort is federal bureaucracy that “slows things down,” including at DEA.

In March, Harris also expressed some frustration with the bureaucratic process of rescheduling marijuana, prior to DOJ’s formal recommendation, calling on DEA to expediently finish the job.

While the Biden–Harris administration facilitated the review that led to the DOJ rescheduling proposal, Trump has also voiced support for the reform.

In Congress, numerous lawmakers have shared their own perspectives on the proposed reform with DEA and DOJ since the Schedule III announcement was made.

In August, for example, Sen. Chuck Grassley (R-IA) raised concerns about the Biden administration’s justification for recommending marijuana rescheduling, demanding answers to questions from federal agencies about how they arrived at that decision in what he described as a rushed and unconventional administrative process.

A week earlier, top Democratic senators—including  Senate Majority Leader Chuck Schumer (D-NY)—sent a separate letter to DOJ’s Garland and DEA’s Milgram urging the agencies to ”promptly finalize” the rule to reschedule marijuana.

While rescheduling would remove certain research barriers and free up state-licensed cannabis business to take federal tax deductions under the Internal Revenue Service (IRS) code known as 280E, it would not federally legalize marijuana, as the Congressional Research Service (CRS) has made known in multiple recent reports.

Meanwhile, two additional congressional lawmakers have joined the ranks of GOP members who are challenging what they say is the “unusual” process that led the Biden administration to propose rescheduling marijuana, expressing concern about how the review was carried out and demanding answers.

Rep. Doug LaMalfa (R-CA) condemned the Biden administration’s push to reclassify marijuana, as well as legislative efforts to enact bipartisan cannabis banking reform, because he says the policy changes would “prop up this immoral industry” and give a “green light to the evil that comes from drug use.”

Sen. Bill Cassidy (R-LA) also blasted the Biden administration over what he described as repeated refusals from federal agencies to brief Congress on its plans and justification for rescheduling marijuana, which he argues fuels speculation that the proposed policy change is politically motivated.

Similarly, 25 GOP congressional lawmakers sent a public comment letter in July opposing the administration’s planned rescheduling of marijuana, specifically alleging the government’s recommendation was based on politics rather than science.

Read the DEA judge’s latest orders in the marijuana rescheduling case below: 

Photo courtesy of Mike Latimer.