Biden’s Secret Cannabis Guidance Ordered Prosecutors to Use ‘Extreme Caution,’ Newly Released Memo Shows
A Quiet but Significant Policy Directive That the Biden Administration Never Publicized
Former President Joe Biden didn’t just issue sweeping pardons for federal marijuana possession during his term—his administration also quietly instructed U.S. attorneys to be “extremely cautious” when handling future cannabis cases, according to a previously unpublished Justice Department (DOJ) memo obtained by Marijuana Moment through a Freedom of Information Act request.
The memo, dated February 26, 2024, outlined charging limitations, reporting requirements and considerations for medical cannabis patients that went far beyond the public-facing announcement about pardons.
Yet despite being released in the heat of Biden’s reelection campaign when he frequently highlighted his stance on cannabis reform, the guidance was never publicly discussed.
And now, under the Trump administration, that internal guidance has been formally rescinded, opening the door to more aggressive prosecution of marijuana cases on federal land and in federal courts.
DOJ Memo Warned Prosecutors to Avoid Pursuing Low Level Cannabis Cases Without High Level Approval
According to the newly disclosed memo, federal prosecutors were told to dismiss all simple possession charges covered by Biden’s December 2023 pardon proclamation. But the memo also made clear that:
- Pardons did not expunge records.
- U.S. attorneys were instructed to oppose expungement motions, except in narrow instances allowed under federal law.
- Prosecutors retained the ability to charge new cases yet were urged to use “extreme caution.”
The memo stated:
“All charges of simple 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.”
Additionally, prosecutors were required to notify DOJ headquarters within 72 hours of any decision to pursue such cases, an unusual layer of oversight that signaled a significant policy shift.
This was never mentioned in Biden’s public remarks, even as he repeatedly suggested that his pardons included expungements an assertion that legal experts quickly noted was inaccurate.
A Notice From DOJ Leadership Now Directs Prosecutors to Resume ‘Rigorous’ Enforcement
On September 29, 2024, the DOJ’s Executive Office for United States Attorneys, now led by Francey Hakes, issued a notice rescinding the Biden memo in its entirety.
The notice stated that the previous cautionary policies, approval requirements, and reporting mandates were “hereby rescinded, effective immediately.”
Shortly after, the U.S. Attorney for the District of Wyoming announced that marijuana cases particularly those occurring on federal land would once again be “rigorously enforced.”
The reason for the rescission remains unclear. The Justice Department did not respond to a request for comment.
Unreleased Provisions Offered Protections and Warning Signs DOJ Now Appears to Be Reversing
Another surprising element of the Biden memo involved supervised release and probation conditions. It suggested that medical cannabis patients in legal states:
“might not warrant revocation”
for marijuana use that conformed to state medical laws.
Prosecutors were advised that alternatives to incarceration could be appropriate for these cases.
No such consideration was afforded to adult-use consumers.
The memo also addressed the controversial federal ban on firearm possession by unlawful drug users, a provision increasingly challenged in federal courts and now headed to the U.S. Supreme Court. While prosecutors were allowed to pursue such cases, the memo required them to consult DOJ headquarters before filing charges due to “potential litigation risk.”
Legal observers say these sections underscore how the Biden administration was preparing for a rapidly shifting legal landscape around cannabis.
Policy Advocates Question Why the White House Kept Its Most Progressive Cannabis Guidance Secret
The internal memo reveals two major takeaways:
- The Biden pardons were more impactful than publicly represented, directing prosecutors to dismiss cases and avoid launching new ones.
- The Trump administration is signaling a willingness to prosecute simple marijuana possession despite Trump’s campaign statements supporting legalization in Florida and backing rescheduling.
Liszewski didn’t mince words about Biden’s decision not to publicize the memo:
“It strikes me as political malpractice…
not to have publicized this guidance at the time it was issued.”
The memo could have provided Biden with a tangible example of administrative cannabis reform something polling consistently shows is popular among voters across party lines.
Trump Previously Endorsed Reform but Now Suggests the Issue Is ‘Complicated’
The revelation comes amid ongoing uncertainty about the status of federal cannabis rescheduling.
In August, Trump said the administration was “only looking at” the proposed shift to Schedule III, a process initiated under Biden and that it was too early to say how it would be decided.
The White House later confirmed that all legal and policy implications were still being evaluated.
Meanwhile, Congress continues to pressure the administration to move forward, with some Republican lawmakers teasing Biden by implying the prior administration “lost the autopen” before issuing the final rule.
Federal Enforcement Posture Gets Even Murkier With New Hemp Restrictions and State-Level Conflicts
Adding to the confusion, Trump recently signed a spending bill containing language that effectively bans consumable hemp products containing THC, a move that stakeholders say could erase much of the hemp-derived cannabinoids market created by the 2018 Farm Bill.
At the same time, states continue expanding legalization frameworks, deepening the divide between federal and state laws.
The DOJ rescission now reintroduces prosecutorial discretion as a major wild card.
A Hidden Memo, a Quiet Rescission, and a Nation Still Waiting for Clarity
The Biden administration’s unpublished cannabis guidance memo now revoked offers a rare look behind the curtain at how federal prosecutors were instructed to navigate a rapidly evolving cannabis landscape.
Its rescission by the Trump administration indicates a shift back toward stricter enforcement, even as the president continues to publicly support rescheduling and broader reform.
For now, another chapter in America’s confusing patchwork of marijuana policy has been revealed not through a press conference or a campaign speech, but through a FOIA request months after the fact.
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