The Drug Enforcement Administration (DEA) and the prohibitionist group Smart Approaches to Marijuana (SAM) have categorically denied allegations that they illegally conspired together during the Biden administration's marijuana rescheduling process.
In a response to a motion seeking to remove DEA from the rescheduling proceedings over alleged ex parte communications with SAM, the agency on Monday said it "unequivocally denies" the charge and requested a dismissal of the motion from Hemp for Victory and Village Farms International.
"Movants' own evidence fails to demonstrate that any unlawful ex parte communication took place," DEA said in its brief with the administrative law judge (ALJ) overseeing the case. "The Movants would have this tribunal embark on a fishing expedition in search of evidence to support these sweeping, unsupported claims, which at best can be categorized as gossip, not ex parte communications."
The original 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 DEA Administrator Anne Milgram wouldn't sign the notice, citing "two confidential sources inside DEA and another outside DEA with intimate knowledge."
The agency said that doesn't amount to ex parte communications, however.
"The tribunal correctly questions the seriousness of the remedies sought by the Movants and as such, should deny the motion," it said in the new filing, referring to comments from the judge last week. DEA added that the cannabis organizations behind the motion failed to "identify any precedent that would support removing an agency from its own rulemaking process."
"The only authority cited by the Movants on this point simply supports the notion that specific individuals may be removed from the proceeding under the appropriate circumstances," it said, pointing out that there is no accusation of any wrongdoing by DEA attorneys involved in the current proceedings on rescheduling. "In short, the Movants' arguments are completely without merit."
SAM also filed a response with the ALJ on Monday, arguing that the allegations "fail on their face to suggest any improper contacts between SAM and the DEA," and therefore they "can and should be quickly dispensed with by this Tribunal."
The organization asserted that, statutorily, unlawful ex parte communications would need to have occurred after the Justice Department posted its notice of proposed rulemaking, which is not explicitly alleged in the original motion.
"Standing alone, that deficiency itself is sufficient to dismiss Movants' speculation about supposed improper contacts," it said.
SAM also cited media reports from outlets including Marijuana Moment and The Wall Street Journal, as well as social media posts from supporters of the rescheduling effort, that contained information about the process that had not yet been made publicly available. It argued that such reporting undermined the allegation that Sabet's communications were uniquely improper.
"In short, the Motion is a transparent effort to smear both SAM and the DEA in an attempt to eliminate from this proceeding one of the strongest voices opposing rescheduling of marijuana," SAM said. "The Tribunal should deny Movants' invitation to create a sideshow requiring SAM and its counsel to expend more time and funds defending against unfounded attacks and instead should permit SAM to focus on the merits of these proceedings."
After the motion was filed with DEA ALJ John Mulrooney, the judge invited both the agency and SAM to respond, calling the nature of the alleged illegal communications "serious."
This comes just weeks before an initial December 2 hearing before the ALJ on the government's proposal to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA).
In a historic first, it was Attorney General Merrick Garland—and not DEA's Milgram—who signed the proposed rule to reschedule cannabis. The original motion said that fact, 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.
Last week, Mulrooney 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.
Separately, the judge last week denied a request from a cannabis and psychedelics researcher to postpone the upcoming 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.
Mulrooney also rejected a veterans group's petition to participate in the 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.
