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tv   Public Affairs Events  CSPAN  November 7, 2016 12:18pm-2:19pm EST

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reform. >> marijuana ballot initiatives in nine states. five states its legalization ballot initiatives. california, prop 64. front page of the "inland valley daily bulletin" talking about prop 64. in maine, question one. massachusetts, question four. we're talking about it for just a couple more minutes. john is in westchester, pennsylvania, an independent. good morning. >> good morning. my comment is relative to most of the drug enforcement officers i've ever heard mentioned talking about drugs say that marijuana is a stepping stone to the hard drugs. and we don't need that. and the ama says the hospital problems associated with
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marijuana are ten times worse than tobacco. we're going broke paying for people in the hospital that had -- that had tobacco in their lives and causing many health problems. and we don't need ten times more with marijuana. >> i'll give you the last ten minutes. >> thanks. as i mentioned before, drug enforcement officers certainly do argue there is a gateway effect. the problem is that drug enforcement officers are not scientists or sociologists. they are people who tend to rely on government language to make their points. as i said earlier in the program, marijuana has proven not to be a gateway effect because of anything about the plant. your latter point on marijuana causing ten times as many serious health effects as tobacco, i have no idea where
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those data are from. i have never heard of them. i study this issue every day. the point is i think a lot of people look at this issue and weigh the costs and benefits. and i think a lot of people have not seen many benefits from drug prohibition and they're willing to think about what other systems could be put in place where the benefits are better than they are under prohibition and that the costs can be managed. >> the book if you want to read more about the data behind this "marijuana: a short history." john hudak is author, senior fellow at the brooking institution. if you want to follow him on twitter it's @johnjhudak. appreciate you coming by. >> thanks for having me. join us on election night from the hillary clinton and donald trump headquarters and watch victory and concession speeches in key house and senate races beginning tomorrow at 8:00 p.m. eastern. now, a discussion on the decriminalization of marijuana. tomorrow several states will
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consider ballot measures to legalize the drug. >> i'm pleased to have a chance to introduce you to our next session, which is current issues around legalization of marijuana. when i was thinking about this panel last night, i said, what in the world am i doing here moderating a panel on marijuana? i think my wife said, tirnlgs you probably drew the short end of the joint. just to clarify things, unlike our mindfulness session we had yesterday, this will not be an interactive session. it's indeniable over the last decade we have witness add a tremendous shift in marijuana in various forms among the states. four states, colorado, washington, oregon and alaska and the district of columbia
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have legalized the recreational use of marijuana. another 25 states permit medical marijuana or have decriminalized marijuana possession. indeed as a testament of the timeliness of this session, voters in at least nine states will decide the various measures of legalization this november. arizona, california, maine, massachusetts and nevada are considering legalizing the recreation of marijuana as well. arkansas, florida, montana and north dakota are considering medical marijuana but our fascination with marijuana is no new phenomenon. marijuana's existence dates back over 10,000 years and came to the united states before the american revolution. in fact, early revolutionaries actually grew various strains of cannabis, mostly for mass hemp production. closer to home at the time before colorado became a state in 1876, hemp and marijuana were legal and had multiple uses. but in 1917, as part of a
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growing movement, colorado criminalized the use of marijuana as a misdemeanor and later made it a felony. that situation lasted for 40 years and nobody over the age of 60 here knows that the use of marijuana hit its stride in the late 1960s, especially on college campuses. i'm only 59 1/2 so i'm not sure what we're talking about here. in 1970 recreational possession was downgraded in colorado to a misdemeanor and in 1975 we made possession and private use of less than an ounce a petty offense. as for the legalization movement, colorado's been a leader in the united states. in the late 1970s and early 1980s, colorado passed several measures to legalize medical marijuana but those efforts never got off the ground due to federal law classifying marijuana as a schedule i controlled substance in 1970. that brings us to the current state of the law in colorado.
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in 20 0 colorado passed the state constitution to allow for the medical use of marijuana. they have in november 201212 colorado approved amendment 64 making colorado along with washington one of the first states in the union to legalize the recreational use of marijuana. now for a few quick statistics. in 2015 marijuana sales in colorado came in at nearly $1 billion. which is up from nearly $700 million in 2014. i'm sure our panelists will comment but i think we're on track for $2 billion in sales this year. that's produced over $135 million in tax revenue so far. currently there are 689 million marijuana dispensaries in colorado. that's more than the number of mcdonald's, starbucks, and 7-elevens combined.
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notably legalization is an opt-in policy meaning individual cities can decide or not to allow or not allow marijuana businesses within city limits perform the 321 jurisdictions in colorado, 71% have already banned medical or recreational marijuana businesses. with that brief overview i would like to recognize our very distinguished panel of speakers. our panel members represent both academia and the bar, so i hope you can walk away with a theoretical and practical understanding of their experiences. our first speaker is professor mikos, law professor at vanderbilt university where he teaches constitution law, federalism, marijuana law and policy. professor mikos is a legaling expert on marijuana policy and has written, testified and lectured specifically on state's constitutional authority to legalize marijuana. federal preemption and state marijuana reforms and he's in
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the process of completing a textbook on marijuana law and policy to be published later this year. i know at my alma mater, his textbook will probably be in the classroom next fall. he is a former clerk to chief michael bodan in first circuit. our second speaker is well known to you coloradans, professor sam cayman, the seeder burg professor on marijuana policy. he is an expert on marijuana law reform and a member of the colorado governor's amendment 64 implementation task force. he's published over a dozen scholarly articles on the subject and co-authors the series "altered states:inside colorado's marijuana economy" for "slate" magazine. our next speaker is general pete michael, attorney general
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of the state of wyoming. prior to becoming attorney general he was chief deputy attorney general and senior assistant attorney general over the natural resources division of the wyoming attorney general's office. he succeeded our own greg phillips, who was wyoming attorney general before that 37 and he was a law clerk for justice cardin in wyoming supreme court. our next speaker is special introduction for me, fredger, solicitor general, determines legal strategies for appeals as well as select constitutional litigation. before becoming solicitor general he was the assistant solicitor general and worked at gibson dunn in denver.
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graduate of dartmouth college. in addition to clerking for me, fred clerked for judge phillip in the u.s. district court for northern district of illinois. i might add that fred has a rare treat this year. in addition to speaking at his first bench and bar congress, he has an argument in the supreme court coming up in october. good luck. our next speaker is the deputy solicitor general in oklahoma. that means he litigates appeals and constitutional issues on behalf of the state. prior to joining the oklahoma attorney general's office he worked for gibson dunn in washington specializing in appeals and administrative law cases. auto a former clerk to judge jerry smith on the fifth sir kurt. we welcome your attendance today. with those introduction, let's get started with professor mikos. >> thank you, judge, for that
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kind introduction. i ta thank you to the conference for inviting me out here. there is a rich and fascinating body of state marijuana laws that's developed over the last 20 years. and i think to understand these laws, we need to understand the constraints that have been imposed on the states by the federal government because many features of state law are really quite peculiar and they represent efforts by the states to work around those federal constraints, what i call work-arounds. i'm going to talk about three examples of these work-arounds to help illustrate the point and then i want to briefly discuss why at least some of these work-arounds may be problematic from both a federal and a state perspective. before doing that, i want to give you a very quick overview of what the states have been doing over the last 20 years. this is really the 20,000-foot view, or since we're in colorado springs, maybe it's the 25,000-foot view of the last 20
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years of state marijuana reforms. this all started back in 1996, these modern reforms with california's passage, on the left-hand side of the chart, cal's passage of proposition 215, which is what i call medical marijuana law. that was a law that permitted some people to use marijuana for medical purposes. that particular type of reform proliferated across other states in the ensuing years. as depicted in the chart, you see the red bar growing. the red bar -- the red portion of that bar, that column represents those medical marijuana states, states with medical marijuana reforms. it progressed steadily, picked up a bit in 2009-2010 and then you also saw new reforms emerge as well. perhaps most notably here in colorado and in washington state in 2012, those two states
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started to allow people to use marijuana for recreational purposes as well. really any purpose they might have wanted. those state reforms are represented in green up on the graph. and then in 2014 it's also noteworthy you saw a number of maybe more conservative states jump into the fray. they were reluctant to legalize even medical marijuana, but these states did legalize cbd, which is one chemical found in the marijuana plant. they legalized it for certain medical purposes. their representation is up there in the black. it's hard to tell them from the prohibition states. one remarkable thing you see on this chart up there is that as of today, as of 2016, we have 43 states that allow some people to use marijuana legally. in other words, they have gone beyond mere decriminalization.
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they allow certain people to use and possess the drug legally. even though throughout this entire period the content of federal law has remained unchanged. of course, federal law bans the use and possession of marijuana. but i want to suggest to you the states have found ways to work around federal obstacles. let me give you three examples of that. so, the first one, first, the states found ways to get doctors to help police the medical use of marijuana. without exposing those doctors to federal sanctions. this was absolutely critical in those early days of reforms. critical for the medical marijuana states that wanted to limit access to the drug. in other words, they wanted to allow people to use it for medical purposes but they didn't want it being diverted to nonmedical purposes. for other drugs, for other controlled substances, states commonly use physicians as
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gatekeepers. for example, if you want to go out and get percocet, which is a controlled substance, an opioid painkiller, you need a doctor's prescription. you can't just walk into a walgreens or cvs to buy it. but the states couldn't do that for marijuana. that's because the federal dea says physicians can't prescribe this drug, they cannot prescribe any drug on the schedule i. if they do, the dechlt a has threatened to yank their authority to prescribe other drugs. in other words, the dea will yank their registration to prescribe controlled substances. any state medical marijuana program that required a physician to issue a prescription for marijuana would be a nonstarter because no physician is going to risk their registration with the dea, their medical practice, their livelihood in order to prescribe marijuana. in fact, the states already knew
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this when california passed proposition 215 back in 1996. i put up here an example of a law that was passed almost two decades prior to california's medical marijuana law. this one was actually passed in virginia in 1979. it's a law, a medical marijuana law that allows people to possess and use marijuana free of state sanction so long as they get a physician's prescription to use the drug. but laws like this, virginia's law from 1979, didn't have any effect. no physician was willing to follow through and issue a prescription, so there were really nullities. still on the books in those states but they didn't have any practical effect. but california, at least the proponents of proposition 15 found a work-around. what was that? proposition 215 only required a physician to recommend, not to prescribe marijuana.
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that may seem like semantics, like the state was simply playing word games, and that was the dea's position but california later convinced the ninth circuit that it made a difference. that, in fact, when a doctor simply recommends marijuana, all that entails is having a conversation with a patient where you declare, you might benefit from the use of marijuana, the ninth circuit declared that was protected speech under the first amendment. as a practical matter, that meant that the dea couldn't punish doctors for issuing a recommendation, even though it could punish them for issuing a prescription. so, every state following california's adoption of proposition 15, every other state that adopted medical marijuana law has followed california's path and now only requires a recommendation. they call it different thing says, a written certification, so on. they don't require a prescription. a second way the states have
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worked around federal law, the states have found ways to diffuse the threat of federal crackdowns on marijuana supply. state marijuana reforms would really be hollow if people couldn't actually get marijuana. it's like me telling my 5-year-old son, you can have an alligator as a pet, can you buy it the next time we go to petsmart. you know, he's going to be happy with me, he's going to be very happy that i've allowed him to get an alligator as a pet. he's going to be sorely disappointed and probably mad at petsmart when he discovers they don't offer one. in the past 20 years the states have tried to provide marijuana in two basic kays, at least provide two basic ways for people to legally obtain marijuana under state law. one is to grow it themselves. what they call personal cultivation. that's normally considered as a trafficking offense. these states said, you can grow it yourself.
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the other way is a commercial model where states said, can you go and buy this drug from some commercial operation, like a big shop out there that you see in colorado today. today, in fact, the states have mixed and matched these two different forms of supply. their regulations employ one or other of these two models and they can basically fall into -- we can typecast state regulations into one of four different types. one is that there are some states that allow you to get marijuana if you grow it yourself or have a caregiver do it. this is becoming more rare. michigan is one of the few states that still follows this particular route but the only way to get it is if you buy it yourself. you can't buy it from a store. there are are no commercial operations. the second model states have followed, you onliville commercial operations. you can't grow it yourself. have you to buy it from some big, highly regulated shop a third model is similar to the
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one here in colorado. it's a mix supply model. can you grow it yourself if you want or you can go into one of the hundreds of dispensaries now in operation across the state and there's a fourth model employed by a couple states which is quite similar to the second one. it's where they prefer commercial cultivation. arizona, massachusetts, are two examples of this. in these states they say, go to a store to buy marijuana. we don't normally want to you grow it but if a store is too far away from your house, can you go ahead and grow it yourself. if there's a hardship, in other words. the next graph shows the popularity of these four models over time. the red on this particular chart depicts those states that had the personal cultivation only. in other words, if you want marijuana, had you to grow it yourself. blue depicts the states that say, can you only get it from a big store. purple is a combination of those
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two things. you can choose it to get it from a store or grow it yourself. the blueish color under the solid blue, the middle one, are the states that prefer commercial cultivation but make some exception for personal cultivation. as you can see from this chart, in those early days of reforms -- feels weird to think of 1996 as early days or long ago but personal cultivation was the only game in town. in other words, states were exclusively or almost exclusively red. there were shops operating in california and elsewhere, but those shops were still considered illegal under state law. at least until 2003 when a couple states started experimenting with this. it was really only until around 2009 that states really started to embrace that commercial distribution model. in other words, creating these -- or allowing these
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commercial stores to sell marijuana. those early states, those early adopters that were in red turned purple. they allowed people to grow it themselves but now started to allow people to buy it from stores. interestingly, every state that has passed marijuana reform since 2009, every single one of those states is a blue state or one of those mixed blue states. that is, they want to you go to a store to buy it rather than grow it yourself. so, why the early reluctance to embrace commercial cultivation? why the sudden shift to commercial cultivation in other states in 2009? well, it goes back to federal enforcement. those large-scale commercial suppliers are much more vulnerable targets to federal enforcers than are the little guy, the person who's growing a handful of plants in their basement for their own needs or for the needs of someone they're taking care of.
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and in the early days, the federal government was both willing and able to try to shut down those large commercial suppliers. but it simply couldn't arrest the little guy. it couldn't go after individual patients and caregivers growing only a small number of plants because there were far too many of them. hundreds and hundreds of thousands in the states. so the states that were early adopters that knew the federal government would crack down on commercial supply, those states embraced personal cultivation. at least in part because it was the only way that they could ensure the qualified patients would actually have a supply of marijuana that wouldn't be interrupted by the federal government. but in 2009, of course, you see this big shift. that's when federal enforcement priorities started to change. federal enforcement practices. that was the first year the department of justice issued one of its enforcement memboranda.
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it was quite cautious, if you actually read it, many people perceived it as essentially giving the green light to commercial cultivation. as the federal government saying, it's okay to set up these stores that will sell marijuana to patients. that helped spur this dramatic shift in state law. that's why states started to legalize commercial cultivation following the issuance of the ogda memorandap you saw state licensed starts proliferate. this is a map of colorado. the green dots represent state licensed stores -- stores that are licensed by the state to sell marijuana circa 2004. this are more on the map if i had a more recent map today. this are hundreds of these licensed shops in colorado and in other states as well. even as this commercial supply has caught on, there's something the states haven't done that seems a little surprising.
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but, again, it seems surprising only until you consider federal law. let me give you my final example here. where are the state-run marijuana stores? to this day, no state has directly owned and operated a marijuana store, a commercial marijuana store. this is surprising to me in light of the state experience following the repeal of alcohol prohibition. with the state's repeal of alcohol prohibition, many of them decided to own and operate a piece of the alcohol distribution market. they thought of this as a way to curb illegal sales of alcohol and also a way to curb the natural inclination of private, for-profit enterprises to grow their market. that model has lost some popularity today. but even today about a third of the states continue to directly control some aspect of alcohol
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distribution. this is, i think, a state alcohol store in new hampshire that's depicted up there. why haven't any states done this for marijuana? in other words, why aren't there any state-owned and operated marijuana stores? and this is an instance where the states haven't been able to work around federal law. in particular, they haven't been able to work around pre-emtion concerns. if the states were to own and operate a marijuana distribution center, a marijuana store, it's arguable that someone could come up, file a lawsuit, arguing that the state operation was preempted and get an injunction to block its operation. the same thing couldn't necessarily be done with a private licensee because a private licensee, a licensee of the state isn't necessarily a state actor. as you'll hear later, there might be suits brought against the regulations of that private ak, to but even if you eliminate
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those regulations, it doesn't stop the person operating the store. they may do so free and clear of any state regulations. even if these concerns are out there, they're much more salient for state-owned and operated stores. i think they're the reason why the states haven't gotten into this particular business. let me briefly conclude and give my thoughts of why this is a good thing. i think these three examples show how federal law has influenced the development of state law. in a large way, they've really distorted the development of state law. and i think for the last 20 years, the federal government has really been playing a high-risk strategy. in other words, the federal government was betting that the states wouldn't be willing to repeal their own prohibition or scale back prohibition if they couldn't get doctors to use the
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prescription-monitoring programs they had, if they couldn't go out there and create these large, tightly regulated commercial operations. and the federal government got it wrong. the states were willing to do that. but the result that we have is less than ideal. both from the perspective of the states and from the federal government. what we end up with is this system that doesn't -- isn't quite one that any state in isolation, if let to its own devices, would necessarily adopt. let me give you the example of -- to go back to the example of personal cultivation. that was hardly the ideal model for the states in the early years, to say to a 70-year-old cancer patient, you can use marijuana legally, just grow it yourself. not everyone has that sort of green thumb or access to friends, even in california, who know how to grow and distribute marijuana. from their per perspective, it didn't serve patients to adopt the personal cultivation model. even from the federal
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government's perspective, this isn't necessarily the model you would want states to choose. states chose to-t to evade federal law enforcement. they knew federal government couldn't crack down on these personal cultivation operations. at the same time, for the same reasons it was tough for the federal government to stop those personal cultivation operations, it was tough for the states to supervise them. very difficult for the states to go out and monitor the 50,000 or 100,000 patients who may be growing a few plants in their basement to make sure they're not selling a little on the side or using it recreationally and so on. ultimately, i think this example of marijuana just tries to show how a hardball strategy or take no prisoner strategy like that pursued by the federal government, at least in the early days, isn't one that necessarily works out well for either party in the end. >> thank you so much. and thank you, judge, for the invitation and thanks to the
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organizers. i'm thrilled to be here. and to talk with all of you about this important issue. i'm sort of going to take over from rob hoor and talk about what i call the stalemate over marijuana law. you know, rob has sort of, i think, very ably given us a sense of how we got to this place. i want to talk about where we are now and what the implications particularly going into the election 2016 and policymaking in 2017 and beyond. rob mentioned the 2009 ogden memo replaced in 2011 by another cautionary memo from the department of justice. finally in 2013 we have the memo that we're all living under today, which most people refer to as the cole memorandum. this memorandum stated the obvious, as rob point out, that the state governments do most of the work of drug law enforcement in this country. while the federal government prohibits marijuana and continues to prohibit marijuana, the states are really the for
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the soldiers in the war on drugs. the state of marijuana should be no different from that, even as states experiment with prohibition. the cole memo in 2013 voiced deference to the states, a willingness to let the states engage in experiments that rob described as long as certain federal criteria were met that set forth eight federal criteria. the principle one and the one i'm sure our friends to north and east will have something to say about shortly, is diversion of marijuana from states where it's authorized by state law, to states where it is not. another is the sale of marijuana to minors. other things such as the involvement of organized crime of other drugs, of guns in the distribution of marijuana were all prohibited. but the cole memo said as long as the federal government -- sorry, as long as state
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governments are doing a good job along the eight metrics, the federal government would defer to that policymaking choice. the other memorandum from the financial crimes memo, which wa. other memoriandum. private statements by both president obama and attorney general holder were all in the same direction. that is we see what the states are doing. we see how this is view of a strong plurality of states, a majority or supermajority of states. we're going to see how that experiment plays out. so it's really important to the cole that marijuana is prohibited by federal law. this is an enforcement priority in the cole memorandum and it's
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not legalization of marijuana, simply a matter of enforcement. this was written into law -- this forbearance was written into law, albeit obscure way through enactment of pharr amendments various federal spending amendments. if you haven't heard about it, don't beat your self. this was paragraph 542 a long spending bill enacted by congress in 2014-2015. stated none of the funds dependent of justice may be used by 34 states to prevent such staets from preventing their own state laws that authorize use, distribution, cultivation of medical marijuana. that is we are not -- the funds that are authorized by congress may not be used by justice to prevent such states from implementing their own state laws.
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that's the language of the statute. it was a number of criminal defendants in california and elsewhere said this meant justice department was prohibit freddie enforcing criminal marijuana laws in those states where that conduct was authorized by state medical laws. okay? they took this section 542 as a prohibition on prosecution and just three weeks ago now, ninth circuit court of appeals sitting again in california agreed. it said we conclude the minimum section 542 prohibits department of justice from spending funds from relative appropriation acts from prosecution of individuals engaged in conduct prevented by state medical marijuana laws and who complied with such laws. this is amazing. this says if you are acting in accord with state law you may not be prosecuted under federal law. it also creates some-odd
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circumstances where in a federal prosecution it becomes quite relevant whether you were in compliance with state law. there are some examples of federal courts doing that kind of determination but i think this will lead to quite a bit of litigation over who exactly is in -- who exactly is in accord with state laws and what state laws will count. if they say we think all use of marijuana is medical use, does that mean all people are thus insulated from federal prosecution. even if it were to mean that, it's too soon to know whaexactl what that means what we have now is a truce between state and federal governments. i say that because as the cole memo made clear and as the macintosh decision from ninth circuit did not disturb marijuana remains illegal under federal law. i hope any lawyer who speaks to
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any client on any legal matter concerning marijuana those are the first words outfit his or her mouth, marijuana remains illegal. even if the justice department said it won't be prosecuting and ninth circuit said that it can't, there are lots of what i call collateral consequences of federal legality. best known baeking problem, despite memo no bank will consistently or for long marijuana industry. marijuana was a billion dollar cash business. that is a spectacularly bad idea. it's a bad idea for people in that business who have to pay their employees in cash. it's bad news for those employees who have to go home with their paychecks in cash. but more than that it is bad news for state regulators. one of the thing the federal government has charged the states with is keeping organized
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crime out. if one of the things regulators want to do is regulate malaysia, a cash business is incredibly hard to regulate. no paper trail. we're talking literally about bags of cash. that hampers lots of different state goals as well as putting citizens at risk. taxation is another issue that is hampered by federal prohibition. if you're in the business of violating federal controlled substance act 280e makes all the deductions except the cost of goods sold unavailable. that's effective tax rate for marijuana businesses something north of 70%. perverse incentives for the marijuana industry, if they have some revenue, the only way they can protect it from cash is to turn it into cost of goods. that is, to make more. only deduction increase cost of goods sold by producing more
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marijuana. again, that may not be the best public policy outcome. contract is another one we normally think of businesses as relying on the use of contracts in their enforcement. that has been a mixed reality in the team since states have begun legalizing marijuana. i always teach the hammer against today's health care thc case out of arizona. really great one for any first year contracts. the two arizona individuals had lent money to colorado dispensary. the colorado dispensary stopped paying and arizona individuals sued in arizona state court thinking this is great. we're going to get home field advantage on these nasty colorado drug dealers. the colorado dispensary showed up in arizona state court and of course said, your honor, this contract is unenforceable, we're
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drug dealers. they knew very well we were drug dealers when they lent us the money. the judge said go and sin no more. you do not have to pay this contract. it's void on public policy grounds. while it may at the time seemed like a win for marijuana industry, the unwillingness of people to pay their debts probably is not the best thing for the growth of an emerging industry. i've also listed here a case that judge krieger had in the distribute of colorado. the green earth wellness had crops damaged by smoke and a big fire here in the springs. they brought a claim under their insurance policy which covered growing crops but had an exclusion for contraband. another classic statutory interpretation question we heard about in our last panel.
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what do we do? judge krieger said did you know what you were in insuring when you took their premiums in if you knew you were in insuring marijuana, i don't see why you shouldn't have to pay out on this claim. in doing so said things quite remarkable. why do we think public has strong policy against marijuana? sure, it's illegal but we don't seem to be acting like it's illegal. a lot in her view marijuana has a quasi legal status under law. bankruptcy protections not available to marijuana businesses, even though debts they hold can be erased in bankruptcy if the person holding them can gain bankruptcy courts, those in the marijuana business cannot. finally in terms of employment we saw the cooks case handled by our colorado supreme court where the court unanimously determined that mr. coats was a medical marijuana user in compliance
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with state law could nonetheless be fired under our state's lawful off duty conduct policy because he was violating federal law. that even though his conduct was clearly sincere medical use, it was not lawful conduct because this conduct continued to be prohibited by federal law. in closing, i'll just say a few words about something that could be of interest to many here, which is access to law and lawyers. every state has some version of modern rule of professional conduct 1.2d, say lawyers shall not engage -- counsel, clients to engage or assist a client in conduct a lawyer knows is criminal or fraudulent. while all marijuana conduct remains legal under law, a clear question arises whether a lawyer may do anything to facilitate that conduct. if that's criminal conduct and the lawyer knows that's criminal conduct a plain reading of 1.2d
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seems to say the lawyer may not assist in any way. colorado supreme court in a comment to our rule paralleling 1.2d stated this does not preclude an attorney from assisting conduct permitted under state law and most states have agreed. but the district of colorado has not. that is while adopting all, or nearly all of the colorado ethics rules, the district court did not adopt that comment. attorneys may counsel regarding meaning of colorado state law but may not assist client in conduct the lawyer believes reasonably committed such laws. i want to go in-depth. i want to get to other panelists so i'll be happy to take any questions you have when we're done. >> thank you. >> thank you. last time i was at broad moore three years ago, western attorneys general, got the phone call from the governor to be acting attorney general.
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it's been a very fast-paced three years sin then. that was when judge fingertip ips concerned to be tenth circuit judge and stepped up from his chief deputy spot to be attorney general. i've learned it turns out the attorney general also has an appointment immediately commissioner of drugs and substance abuse. i'm in charge of that, i guess. i've learned a few things in three years. but i thought, the one thing i've learned is this marijuana debate, people are very vocal. very strong opinions. we have a governor who was a former united states attorney, had a panel i was on, committee we produced lengthy report possibility of legalization in wyoming. i'm talking a minute pout a little bit of legalization we have.
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it's very contintiny. they were adamant about their views on marijuana one way or the other. so it's a very strongly -- people have very strongly held beliefs. one of the things i thought i would do before i talked about some of the things i see more from a law enforcement perspective, maybe from scientific perspective, a crime lab perspective is just give your little idea of where i'm coming from. i think people in this debate ought to identify a little bit their background, where they are coming from. everybody gets a chance to -- should have a chance to see us, see what our biases are as we come into a debate that's so highly charged as this one is. let me just go through the things that i see on a daily basis to kind of give me some of my perspectives. one of the things i do as commissioner of controlled substances is i recommend scheduling of new substances. that's an easy one. the federal government will identify brand-new molecule
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that's been developed by drug synthesizers and they ask the state to adopt that. we adopt that as an illegal substance. the other thing i do, this is very controversial right now, but it does give me a little insight into what's happening in the drug trade. in wyoming we have asset forfeitures like most states do. that's been a very hot topic over the last several years. we've had some amendments to our laws. one of the things that i do is i actually approve, get phone calls in the middle of the night, sometimes middle of the day approving a seizure of guns, money, mostly money, from people that are trafficking drugs. that's not the drugs themselves, these are the pope transporting money across wyoming. that's something, a pretty good view what's going on. i had a call yesterday, maybe the one the day before. probably 20, 25 in a year where asked to approve probable cause for the seizure of assets what
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are believed to be drug traffickers. that's the beginning of the process, to actually forfeit those assets for drug trafficking. another thing that i do is that the attorney generals office does all of our appeals. we have one step appeals wyoming supreme court being the smallest state in the union. i'm in charge of our toeshs that do the criminal appeals and i'm very heavily involved. i see what's happening in the drug trade in terms of the cases. mostly they are felonies. the appeals are generally felonies and i'm seeing who is being convicted, what they are doing, what kind of conduct, what's some of the things that are happening. what kind of criminal issues coming through to the appellate court. a big one i do in the wyoming attorney general's office is division of criminal investigation so our office has 260 folks. over 100 of them in the division of criminal investigation. that includes the operations
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division of that group. what they do mostly is drugs, wiretaps, investigations, all the things done statewide on drug investigations is our division of criminal investigation. with that division we also have a crime lab. hopefully i'll have the time. i want to spend a few minutes talking about challenges, scientific challenges we're having in the crime lab with marijuana. so i get to see that up close, the difficult issues there, including trying to fund things we need to have a good crime lab, to do the things we need to be done in the area. all affected by legalization. it affects all these operations. one thing i don't do so i can't comment about this, in wyoming attorney general is not in charge of prosecutions at the local level. we have elected county prosecutors.
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so most of the drug -- it was mentioned earlier, most of the drug enforcement in the united states is done by states. but in wyoming because the attorney general's office does not run local prosecutions we don't engage in prosecutions until they come up on appeal, and then we deal with the appeals. so i really don't do a lot of that. i don't have a history, unlike general phillips before me or judge phillips, he was assistant united states attorney and had prosecutor experience which i don't have. i get a pretty good viewpoint, see what's going on in the drug trade and we keep statistics. one final thing i do, in order to get wiretaps for our investigations, i have to review those personally. so judge rankin, for example, receives wiretap bliapplications his role. obviously we have to have very
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strong probable cause before we're listening to people's conversations or on the telephone. that's something i do. i get a pretty good handle what's going on around the state in wyoming in our investigations. now, of course, wyoming is one of those states you mentioned, some of you if you're from wyoming you've heard this joke, wyoming is a small town with really long streets. we only have 600,000 or so people. a lot of the statistics and things we see are a little different than what you see in larger areas that have larger metropolitan areas. i think some of them are worth maybe harkening or paying attention to. one thing i want to mention briefly, and then i'll move on a little bit to my general observations about where i think things are heading, some of the challenges that we're facing in law enforcement area is we do actually have a ballot initiative in wyoming. in wyoming right now, only legal
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as hemp extract, with a very low thc content. that has really not become an important market in wyoming. it's a medicine we use for seizure disorders. that law is new. that was passed in 2014. so we have very little experience with legalized marijuana or cannabisoids. it did not get enough signatures, needed 30,000 to get on the ballot and there were not enough signatures to legalize marijuana. it's not for recreational use, it's medicinal use. it's one of those medicinal laws like colorado's first medicinal law, which was very, very liberal. where 18 years old can claim they have fibromyalgia and get a
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certificate from the doctor and they are down the street getting marijuana. our ballot initiative is very liberal in terms of all the physical conditions that could lead to receiving marijuana legally in wyoming. but we don't know, it's not on the ballot this time. it could potentially get on the ballot in 2018. the signatures would have to be collected by 2017, february 2017. so it might not make it on the ballot. if it does, there's problems with it that i think may be problematic for becoming voted on by majority of the voters. i think the biggest one is the fact there's no local opt in or opt out. wyoming has a pretty strong tradition of people being of local communities, whether in education or other areas believing in local control. i think wyoming voters may have difficulty accepting in position of marijuana in every community in the state, not having an opt out. i think that might be a failings
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flaw in this ballot initiative. but anyway, because there's a ballot initiative, governor mead did appoint a commission and we spent a lot of time, many meetings, and a lot of work led by excellent professors at the university of wyoming and produced 247-page report that actually has some very good information about various issues, policy issues, probably more than -- some legal issues but policy issues about legalization and various places and talking about the various models, liberal models versus vermont's very restricted model of medical legalization. what do i see as some coming issues, some challenges we face? i think i'll mention first, i think there's some difficult scientific issues that are going to be faced. they are faced, to some extent, whether marijuana is legal or
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not. but in the law enforcement area, we have a problem, for example, in wyoming where we have a statute that says a certain amount of plant material and possession is felony possession, over certain amount. also in liquid form. we do not have one that deals with brownies. we have a recent district court decision, not wyoming court decision but recent district court decision that the law does not restrict the quantity of having brownies. this fellow had brownies, cookies and chocolate. he had all kinds of stuff when he got caught. so that hasn't gone to the wyoming supreme court. so we have legal issues in terms of what is it. marijuana and brownies, you know, is extracted into oil. the oil is used in cooking, i guess. that's what i'm told. so is that a liquid? that is a solid? what is it? we had some issues like that,
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just labeling issues, i guess. we have quantification issues. it's more difficult to figure out quantities of marijuana. we have in our crime lab gas chromatograph technology. to ral find out quantities of marijuana without changing quantities of thc, that's what you wan to know, how much thc is in the sample. in order to do that, if you use gas contromat graph, you have to release material. that creates more thc from thc acid. now you've disrupted your sample. you can't tell what the quantity is. in order to do this, you have to buy other equipment. liquid contromat graphs.
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how do you calibrate equipment. we know, for example, we do go to the gas station. at the gas station there are inspectors that go around and make sure the flow coming out of the gas pump is right so we're not cheated by the gas station. also calibrate in crime laboratory. you have to have samples of material, obtain it legally through the u.s. mail somehow from a lab that says this is how much thc in calibration material. please calibrate your equipment using this material. that thc in the sample degrades over time. you have to have continued shipments of calibration material and, of course, you have to buy it. where is that going to come from? there's a lab in mississippi where there's been some of that work has been done. that's going to be an issue for crime labs and other laboratories. what are the quantities.
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what i found out, doing research for this panel, journal of american association article about medicinal marijuana. they did a study, recent study, 2015 in seattle and los angeles involving medical marijuana and looking at the dosages put on the packages. the dosages were wildly inaccurate, less than 25% of dosages of labeling on the packages, 10% accuracy in the amount of thc in the sample. there are significant scientific issues going about regulating marijuana and regulating thc contents. i think what we're seeing, what the statistics are showing we're seeing in wyoming in terms of what's seen traffic into the state is that the direction of marijuana use is in the direct of edibles. that seems to be where it's
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going. that seems to be where some of the biggest scientific challenges are in edibles. there might be increase in vaping instead of smoking joints. vaping. that's going to be a challenge for legalization is this edible issue. we're seeing that already. a couple of quick points. i don't want to take everybody else's time. from my perspective we have kept statistics over the last several years. wyoming did not join suits by nebraska and oklahoma against colorado on federalism case. but we did engage and begin taking statistics about spillover into wyoming of marijuana that's purchased legally in colorado. i shouldn't say legally but at least under state law that's purchased in colorado and makes its way into wyoming. what we found is these statistics are pretty reliable.
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there's been a significant increase in term of the amount of marijuana in wyoming coming from colorado, legal products. it's pretty easy to tell. they are in packages with labels. we know where they came from. we have all the labels. we know where they came from. i'll throw a couple of quick statistics at you. marijuana incident reports from 2014, 127 of 881 were from colorado. the next year 2015, it was up from 127 to 156. out of the total number of incidents down by 100. in 2014, 127 of 881 and 2015, 156 of 783. so a very significant percentage increase were coming from marijuana that was purchased in colorado. also we've seen the largest
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increase in some parts of wyoming the amount of marijuana incidents have gone down in the last five years. in northwestern wyoming. but in southern wyoming on the colorado border, we've seen a large increase. so it's pretty clear, the evidence is pretty clear that being a neighboring state that we have more marijuana coming into our state from colorado. much of it purchased from legal dispensaries in colorado than we've had in the past. it does have an impact on the neighboring state. i don't think it's all that debatable actually. but let me just close. i think i've been around long enough, turns out my father was a school principle in pennsylvania back in the 1960s and '70s. in those days marijuana was debated, of course, and also there was big issues in those days about smoking. cigarette smoking.
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we had in those days it's hard to believe now, there was a time there when all the schools, high schools in pennsylvania started allowing smoking in the school but not in the classroom. they had special smoking areas. so everybody thought the wave of the future was everybody would be smoking in the classroom. so trends don't always go in the same direction. today nobody would think of having smoking areas in schools. i think the same thing actually happened with marijuana. there was a period in the '70s when there seemed to be momentum toward legalization but then went the other way. that momentum shifted back again. in these areas of substances you have ebbs and flows in the public thinking about these things. i wouldn't be surprised if we don't know what the next ebbs and flows are going to be in the marijuana area. i guess finally, let me say one last thing, in preparing for this and also doing our report for the state, for governor mead on marijuana legalization, one
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of the things that's so striking about marijuana, for example, compared to what we know about tobacco today is the long-term effects, the medical knowledge -- at least what i've seen -- is not that good about what the long-term effects are on, for example, heavy use by people that start using marijuana, you know, in their teens. so i don't think the last word has been spoken. of course that issue is affected by whether marijuana has been available to do clinical trials and long-term study with and it hasn't in a legal form. it has been in europe, obviously. i think there's really a dearth of knowledge out there still scientifically about long-term effects of marijuana on health. so you know, for example, the attorneys general of the united states have a huge effort, education effort to reduce youth use of tobacco. it's been very successful.
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the amount of kids starting tobacco use in their teens is going down dramatically. here we have the opposite phenomenon. i know colorado, they can hold up their finger and say we're number one because they are number one in marijuana use among all demographics. but again, these things ebb and flow over time. appreciate your time. i hope i've felony a few ideas of interest to you. >> like it or not, it is legal in colorado at least at the state level. general yarger, what are the challenges you and your office face in representing and enforcing state marijuana law? >> well, i think general mike is right that have you to understand where a person comes in terms of their perspective. i'm kind of lucky in that regard. with all the controversy and
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issues that surround marijuana i get to put that aside and represent the state in some very important and terribly fascinating legal issues, at least if you're a legal nerd like me. so the perspective i bring to it and the challenges i faced are wrestling with questions of preemption. everybody knows when you walk into a marijuana store in colorado you're breaking federal law and becoming a flown. at least you can be prosecuted as a flown. what do you do with that? what's remarkable is despite 20 years of legalized marijuana in a very significant way starting with california, the law on preemption is pretty unclear. courts can't even agree what method of preemption to use. they have only scratched the surface of the preemption provision in the controlled substances act. we don't know if the standard is obstacle preemption standard which affects the law and how it operates and practices against control substances act or a much
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narrower version of impossibility preemption. if there's a way for someone to comply with both, there is no preemption. and so we wrestle with that. we've been obviously defending a number of lawsuits on the preemption front so far successfully. but as these progress, we still don't get much by way of clarity on the law because most of these cases have been kicked on standing issues or on preliminary issues whether or not somebody hat ability to step into the shoes of the federal government and enforce controlled substance act. the only other thing i'd ask before i turn it back over, how interesting it is that federal government is of multiple minds about this. we have enforcement guidance which presumably tells us what we have to do to stay in federal government's good graces and continue regulation but we don't know how they view those investment priorities and what
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they look at to determine whether enforcement priorities are being met. we don't know how to enforce geps a state don't believe holding up their end of priorities. preemption suit to get rid of all. general holder preserved that option and said they won't seek to enforce preemption provision against the state of colorado, at least not at this time. here we are four years later heavily into commercialized and regulated marijuana. they certainly haven't done so. the other option is they can enforce on an individual criminal prosecution basis. that doesn't seem satisfactory either because doesn't get to the root of the problem which would presumably with the state's regulatory framework. the other side of the coin is congress. congress has been both broader and narrower in how it
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approached the problem. broader in the sense spending legislation doesn't look at enforcement priorities, it just says as long as someone is in compliance doj, you can't spend any money on prosecution or doing anything to interrupt the state's regulatory process. but it's narrower in the sense it only covers medical marijuana. oddly about that we know that from cases like cannabis supreme court, doesn't matter what you're doing with marijuana it's illegal under controlled substances act. the professor is right. it's a truce. the outlines of those truces have been drawn, but the very specific ways they might play out if we had situations where those outlines were tested are not entirely clear. so far it's really been up to the states to regulate to the best of their ability keeping in mind the will of the people and the laws that they have put in our constitution to implement a
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regulatory structure that survives challenges like the ones we're litigating against. >> before i turn to oklahoma, fred, is colorado seeing any sort of empirical effect on law enforcement? has there been increase or decrease in crime activity related to drug trafficking? if you seen any impact on the social services? i'll turn that to other panelists. i want to start with your perspective from the colorado attorney general's office. >> i am not as heavily involved in the social services aspect or criminal enforcement aspect. i get to keep my head up in the clouds in the preemption stuff. i can say we've had major law enforcement initiatives coordinated by this office, by my office, prosecuting individuals that were attempting to use the state, particularly medical laws as shields to cover
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up interstate trafficking. those stories certainly catch headlines. what's difficult for me to opine on is at a very granular level how you measure whether or not the legalization is increasing use from a baseline that might have been hard to measure before. certainly the numbers we're getting from the federal government, rocky mountain high intensity drug trafficking area, which covers the corridor in the rocky mountains suggests there's an increase, suggests an increase in trafficking. i think there's certainly some compelling arguments that's a side effect and not unanticipated one. i don't know if i have enough information to really speculate about how accurate that is or how that plays out. >> let's turn to oklahoma. oklahoma sued colorado. tell us about that. >> yeah, it's been a little
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awkward, awkward situation, surrounded by coloradoans. the suit originally brought in the u.s. supreme court. the u.s. supreme court has original jurisdiction over suits between states but they have interpreted that jurisdiction to say it's discretionary and they can decide whether or not to hear the case, their standings. they decided they would recognize original jurisdiction. now we're left to have intervened in tenth circuit right now. rea littling our preemption claims. i want to talk about what's sort of covering, states that border colorado. then i'll get to the bigger issues about what marijuana -- regularserational marijuana legalization. legalization is a weird term because it's still illegal. what that means for the nature
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of our constitution and constitutional order. as far as effects from a bordering state, we know and recognize interstate trafficking is a reality, a reality that's increasing in 2014. 2014 was one of the first years of recreational legalization in marijuana. we had several thousand pounds come 36 different states coming from colorado. i'm sure that number is increased more in 2015 and 2016. there are not a lot of mechanisms that are in place to prevent known drug dealers from other states to come in colorado and buy marijuana or in other respects. we had a case in oklahoma where a known sex offender went from oklahoma to colorado, bought marijuana, came back to oklahoma and was caught trying to sell it near a school. but in addition to the trafficking outside of colorado,
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it's always true that there's lots and lots of people coming into colorado as tourists to participate in the marijuana market. the retail demand for marijuana in colorado is actually primarily driven by visitors and not from people in state. surveys show as many as half the visitors in colorado are motivated in part to visit because of marijuana but i'm sure attendees of the conference are an exception to that statistic. if you look at a map of the dispensaries in colorado and professor mikkos gave us an old one in 2014. concentration of dispensaries in colorado are two areas, one major metropolitan areas and the other is all along colorado borders, kansas, mexico, wyoming, utah. and this flow of marijuana into other states as fred said is not a surprising result whatsoever. we would expect it to naturally
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occur. interstate trafficking is inevitable and entirely foreseeable consequence authorizing industrialization of marijuana, no less than if they dumped pollution from other states. i was on a flight. i was explaining to a lady sitting next to me. she said what are you speaking about in this conference. she furrowed her brow and said don't you think there should be a federal policy coordinating the drug law so all these different state laws wouldn't cause problems. >> i looked at her and said i don't know if there should be but the reality is there is. yerks many years ago congress passed a law making marijuana illegal nationwide and that law has not changed. we sit at an odd time in history where states are beginning to pursue their own policies regarding marijuana as if federal controlled substance act database really exist. indeed i can think of another
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situation analogous to status quo on marijuana now or any time in history since nullification days before the civil war where federal law completely prohibits an activity and yet individual states enact and enforce laws in a matter that causes proliferation and externality is in other states. i think this unique situation creates novel legal issues about federalism, nature of our union and role of our federal courts we all have to wrestle with. so marijuana subject du jour that raises the question, much larger issues and profound questions marijuana policy at stake. what approach to looking at this issue is to consider supremacy clause and the problems it sought to rectify as well as federal court established by constitution. start with the premise that as sovereigns in our constitutional systems states have the ability to set their own policy to address social ills that
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confront their communities. certain problems of public policy are inherently interstate in nature. for those problems the state has a solution. state representatives and congress can all get together and vote to pass a law to set policy on interstate issue agreeing to give up measure of their own sovereignty in favor of a uniform system. what happens when a state attempts to go back on that bargain by implementing a different policy there by imposing externalities on other states. alexander hamilton and federalist said the lack of ability to solve this particular collective action problem was the great and radical vice of articles of confederate indication. under the articles of confederation, the problem was that these national laws, though in theory were laws yet in practice mere recommendations which the states observe or disregard at their option. the framers created the solution to this problem in the supremacy clause which acts as a negative to conflicting state law and
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state courts which acts as neutral adjudicators to enforce laws. evidently and radically defective and hamilton sediment to a mere treaty on the good faith of the parties and the no the government. when we spoke of federalism we don't use it as merely a code for blind pursuit of states rights but rather as a way to seek application of balance of power between states and federal government. and to be sure in recent years it's been more obvious than not the federal government exceeding those bounds but we must not lose sight of the fact federalism meant in certain instances as well. i think it's useful to have this view of federal system when we think about controlled sub stabz act and recent state efforts to authorize marijuana production, commercialization and use. through the csa, the state's representatives in congress got together and agreed to ban marijuana for all uses nationwide because it determined main was, one, a subject
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injurious to health and, two, heavily trafficked between the states. it was an interstate problem states agreed need add national solution. this agreement included entire colorado delegation. csa explicit findings control local, possession and distribution of controlled substances was necessary to control interstate trafficking of drugs. and so the supreme court's decision in gonzalez v. rage premiseded on the idea constitutionally prohibit intrastate activities because any significant exemption in the marijuana market would undermine csa's ban on interstate trafficking. now certain states chose to renege taking affirmative steps to create marijuana market for express purpose of profiting on that, billion dollar industry now marijuana trafficked to other states precise the harmon states congress wanted to
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prevent. what's taking place on the ground in colorado and other states is what congress intended to happen when it enacted near and complete nationwide ban of every aspect of the marijuana trade. again, i think this creates a singular situation in american law where there exists an unresolved tension between federal law and state law both enjoying irreconcilable coexistence for time being. this leaves federal courts i think with a host of questions to answer. can state law grantlens to perform an activity that's unlawful under federal law? can a state create regulatory structure to facilitate a market made illegal by existing federal statute? can a state create property interest in federal contraband? can a state profit off activities through tax revenue as colorado did to $135 million in 2015 even though those activities banned by federal statute. if the federal executive branch decides to acquiesce to such state activity, can other states seek to preserve the union under federal law and vindicate the national policy from which those
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states once enjoyed the benefit? of course there are well established ways to change national policy. csa could be repealed in whole or in part. may decide gonzalez, constitutional for marijuana growth and consumption or marijuana classified as no longer schedule 1 substance which the dea decided last month in order to do. the question posed now can csa be dismantled by piecemeal nullification as states decide apart from national policy. and other attendant legal issues emerge as well as professor pointed out because prohibition of marijuana has been national policy for so long, an entire legal structure has been erected based on the presumption that marijuana is by law illicit. so if the tension between state and federal law is so remain many vexes legal laws arise as pointed out in banking, in taxation, in employment, in legal ethics. you can add to that in firearms.
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in order to purchase a firearm you have to fill out a form do you use illicit drugs. if you say you can't get that firearm. housing and public benefits you can't use federal illegal drugs in public housing which causes different impact on people who are dependent on federal benefits. so this is just a sampling of the many questions federal judiciary will be forced to confront if the status quo on the coexistence of state and federal laws is allowed to remain. of course none of these questions pose much of a problem if the larger question whether our constitutional structure permits state to authorize license activity prohibit bid federal law is answered in the negative. so it is that question about the nature of our federal system, which i think is both the most interesting and most pressing question of the legal issue surrounding marijuana that confront the federal courts today. >> well, that proves why this the dream issue for academics up here.
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i'd like our two professors actually to react what they have heard from other speakers. in particular i'd appreciate your comments on this externality issue, whether it's drug trafficking to other states, a rise in crime if that's true, what the data show in colorado and maybe some other externalities on social services such as growth in homelessness, if there's any data that would support that. what's in the consequences of this new market? >> well, maybe i can jump in on externality point. i think there's a valid point that's been made. i think certainly if colorado or any other state legalizes marijuana, it's going to have effects outside that state. that is the classic collective action problem. but there's a proper way to deal with that. in the past what congress has done is essentially free rided off state law enforcement.
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state law enforcement historically has handled 90 -- maybe even more than 90% of marijuana cases. congress benefited from that, neighboring states benefit freddie that, colorado was policing its prior prohibitions. now colorado and other states have no obligation to continue doing that, any more than oklahoma or wyoming have an obligation to expand medicaid or ban firearms the federal government prohibits but state law does not. the proper way for congress to deal with that is to pass new legislation, maybe new spending legislation that would ramp up federal enforcement. you can't force a state to go out there and police marijuana. but nothing the states have done would prevent congress from stepping in and hiring thousands more dea agents to try to replace the work that the states used to do gratis for the
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federal government. >> incidentally before you begin your comments, i would like to take questions from the audience. i know you're here cuss you're interested in the topic. after we wrap this up we have mics in the room so you can feel free to ask questions. >> thank you for that. i agree with my friend rob on this. you mentioned csa can't be dismantled by piecemeal legalization in the states. csa the reason people are operating growth facilities and dispensaries in colorado is because national law enforcement agencies have chosen not to enforce the act and legislature said cannot take place against medical marijuana dispensaries. so the federal government has power and capacity to end this experiment whenever it chooses. the reason it has not done so, a policy decision that these experiments in the states should be allowed to continue. i would sort of second what rob said, the state is under no
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obligation to enforce misdemeanor law, under no obligation to pass prohibition under their own state laws and they are under no obligation to leave those prohibitions in place. the thing we're really arguing about is as the oklahoman and neb briefs to the supreme court indicated the only thing we're arguing about is regulatory and tax regime that states like ours and others have put into place. the question is would oklahoma and nebraska be better off if those were dismantled? i think the answer to that is almost certainly no, if marijuana were legal but not regulated in colorado, i think that would have far more negative repercussions for oklahoma or wyoming or nebraska or kansas than our current regime. as to your question about measurement, measurement is hard in this area. so for example, one of the things that we hear is that impaired driving arrests have gone up in colorado. i have no reason to doubt that's true. it's important to remember that
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colorado patrol agents are being trained now more than they were before to identify instances of impaired driving attributable to marijuana. in much the same way that the increased awarren of sexual assault in the 1980s might have been seen to lead to less sexual assault, in fact, the arrest rates went up because law enforcement was taking that more seriously as a concern and you saw more willingness on the part of law enforcement to take seriously those complaints and to prosecutor them. i think we're seeing something similar with regard to measurement in this context. >> we're going to get a new attorney general, u.s. attorney general in january in all likelihood. what do you think the consequences would be of attorney general that made enforcement a priority and with drew some of the policy guidance that the state is operating under now? >> i think that is a question of
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will not law. clearly attorney general has responsibility and authority to enforce federal law throughout the country. the current attorney general and her predecessor have taken the position there should be deference. there's nothing to prevent other than section 542, which applies only to medical marijuana. there's nothing to prevent a new attorney general from changing policy and attorney general chris christie might do something very similar. he said to colorado when he was campaigning here smoke 'em if you've got them because when i'm president it's going to go away. >> questions from the audience. yes, sir? >> in colorado, you've got 300 banks that can't take cash from marijuana business -- in colorado we've got 300 banks, maybe a little more, that can't take cash from the marijuana business. and yet the state takes its revenues that it receives from the marijuana business and puts
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it in the bank. i mean, i understand the legal labyrinth we're talking about. but based on just the finances, isn't the horse out of the barn on this? isn't this going to be driven by finance and market concerns and the law is going to be trying to catch up? >> i don't know if that was directed at me. >> it wasn't directed at you. >> part of the reason amendment 64 was enacted and its preamble, in the view of the people it was a wide use of state resources to deal with this issue in this way. certainly tax revenue was a significant part of that. the bargain was we take an industry that's thriving in the
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shadows, we bring it into a regulated framework and we take a slice of that like we would any legitimate business. i think apparently that public policy argument has been resonating and i think it will continue to expand. what i look forward to as a lawyer, when california finally legalizes recreational marijuana as i think it might decide to do this year. it tested the waters ballot initiatives before colorado took that step. once the sixth largest economy in the entire world becomes a recreational state, i think it will be difficult as a legal, practical and financial matter to do what governor christie suggested he might do had he made it to the primaries, which is change course after really now we've got five years, or it's longer than that, almost coming up on a decade since '09
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memo, and since colorado and other states have done commercialized regulated supply chains for marijuana. i don't understand how you can cleanly walk back to that and go back to 1995 before states start going down this path. the other point i did want to add, which i think is very fascinating about the way the csa operates and a bit of a response to deputy solicitor of oklahoma's comments and the professor's comments, the csa is commerce legislation. what that means csa operates against individual people. it doesn't operate against the states. in other regulatory framework, in medicaid, for example, there are clashes between the states and federal government all the time about what the laws mean and living up to their end of the bargain. that's not how the csa works. we create crimes the federal
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government will enforce. certainly circumstances, narrow ones they can enforce csa. that's probably why we haven't seen so much case law on preemption issue and why it hasn't been flushed out in medicaid where you've got constant intersections on that dimension. it's a fascinating area. i don't agree with the way it has played out is contrary to notions of federalism. congress has immense tools to tamp down federalism when it wishes to. it has huge budgetary muscle to wield against states when it wants states to do certain things. we face that all the time as state officials. it's a different kind of legislation. i think that's why we see this fascinating unresolved body of issues that oklahoma was pointing out, which i would look forward to their resolution.
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>> yes, sir? >> the controlled substances act is the legislation that results in the scheduling of drugs, right? and since 1992, i think the professor said the physicians envarious states have had some kind of authority to recommend the use of marijuana for individuals. has the drug enforcement agency thought about the rescheduling of the drug in the context of a
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variety of physicians throughout the nation recommending it contrary to the dea's scheduling of it. >> professor michaels. >> i'll try to be quick. so there have been at least three instances over the last 20 years where the dea has revisited the scheduling question. it has authority under the controlled substances act to move marijuana to a different schedule. on each of those occasions, including just a few weeks ago, the dea refused to move marijuana. i think the main reason -- the main difference between the dea's view of the drug and states -- medical marijuana state's view of the drug is the dea requires a different type of evidence. it doesn't want anecdotal, practices by physicians, it actually wants to see large scale research studying the effects of this drug and demonstrating benefits of this drug. even though there has been a lot of research done on marijuana last 20 years, lot of reform of
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state laws, there hasn't been anything fun, scientific research that met gold standard that the d each a requires. it's a constant refrain from dea. just show us anecdotes and practices from physicians. >> and based on a large scale gold standard, certain testing -- >> go ahead, sam. >> i think the dea said they have moved away from justification for schedule one status and focus on the medical abuse. just a couple very quick things. rob mentioned we want, you know, sort of studies that show the benefits of marijuana that's actually more possible now that the dea has said they will make -- they will increase the number of licenses for people that want to grow marijuana for the purposes of engaging in that. furthermore, the refusal of the dea to reschedule marijuana has
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consistently been joup held who looked at it whether it's in d.c. or the ninth circuit. it's a small point. since 1992, physicians have had the opportunity to recommend marijuana for these who are a state and then i started to call the current decision was that a physician cannot be precluded from recommending what she believe sas beneficial course of action to her client and borrowed from a number of abortion cases. we said that doctors couldn't be branded from recommending that for their patients. >> please join me in thanking our panel. [ applause ] p prz. >> tonight on c-span 3, american history tv and election program spent four president sis and six campaigns beginning at 8:00 eastern with dwight eisenhower
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in 1956 at 9:00 p.m., 1964 and lyndon johnson, half hour later, 1972 and limpd nixon aels from that year, george mcgovern and then from 1976 it's jimmy carter of 2025 followed by jared ford. all tonight on c-span 3. election night on c-span, watch the results bean part of the national conversation about outcome. be on location of the hillary clinton and donald trump election night headquarters and watch victory and concession speeches in key senate house and governors races. starting live at 8:00 p.m. eastern and throughout the following 24 hours. watch live on c-span, on demand at c-span.org or listen to our live coverage using the free c-span radio app. whether the next president
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could deal with vladimir putin and syria and ukraine. also human lights in russia and gray zone countries of eastern europe. [ applause ] . >> thank you very much and good evening ladies and gentlemen, thank you for coming on a slightly rainy evening. m and i want to welcome you to mccain institute. and serving the executive director of the mccain institute. and we were founded in 2012, dawn of the legacy of service to our country of senator mccain and sydney mccain and the mccain family going back generations. i'm very pleased to seesome navy uniforms here in the audience. we focus on character-driven
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leadership and we fashion ourselves as a do tank more than a think tank. we like to figure out what we can accomplish and figure out and do it. and we do that in the areas of promoting leadership, humanitarian work, human rights, national security and international security. global rule of law and governess. we love to have a good debate i think we've done over 20 now on key foreign policy questions that united states united states needs to address. two years ago, we did a debate about russia. and kbe at that time was is it time for containment? given the zugts about russia, it seems after the u.s. presidential election, is it time to reengage with russia? before we move on, let me do a few more housekeeping items. you can learn more about the mccain institute by going to our
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brand new refurbished website, which is www www.mccaininstitute.org. you can even do that for your chair. we have wi-fi in the memorial auditorium. so you'll see it on the back page. and the pass word is there as well. and with that, you can log on and we encourage you to tweet and comment and actively participate we're delighted to have c-span here with us this evening. greetings to all of you here. and we are live webcasting this debate and we keep these archives and put them up online and website and youtube channels souk go back to these and we produce a shorter version so if you weren't here tonight and you
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want to go back, you can get the short version, that crystallizes the points that are made. we have an excellent, excellent panel of people to debate and we follow standard, organized timed debated groups. so, what we will have is four minute opening from one side. two minutes to rebutt, then questions. moderator will start some of these questions and give equal time to each side, two minutes each to address those questions, and then we'll gradually come to you the audience. and be thinking about what you would like to throw into the debate. please when you do, don't make long statements, please focus on a question that we can throw back to our debaters and hear their take on that issue. tonight, to argue the case that it is time to reengage with russia after the u.s. presidential election we have
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tom grant. u.s. foreign service officer and political officer in the u.s. embassy and moscow. and early in mid0u. was really helping the u.s. government understand what the system was that was being created that was going to go on russia. i mean later went on to work as i did for the counselor of the state department tom zelic and served as senior director at the national security council and kissinger associates. joining tom is paul saunders who is the executive director of the center for the national interest. and is the associated editor of their publication, the national interest. and runs their russia program within that center. on the opposite side, no, it is not a good idea to reengaging
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russia right now. we have another friend and former colleague and current colleague, david kramer. former assistant secretary of state for democracy and former deputy assistant secretary of state for russia and ukraine. and with david this evening is the deputy director of the center at the atlantic council and senior fellow there. born in ukraine. got her ph.d. here in the united states, and like wise arguing the case that now is not the time to reengage with russia. to kick us off, i'm going to pose the question again which is is it time after the u.s. presidential election for the united states to reengage with russia and i'm going to turn it to tom graham to start us off. >> thank you, kurt. and thank you to the mccain institute for hosting this event this evening. both paul and i and i think the
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others are glad to be here. the eruption of the ukraine crisis in 2014 marked the end of an era in u.s.-russian relations. developing a new approach to be one of the priorities of the administration. it is different than 25 years ago. the global balance of power is shifting from europe to asia, new technologies are defusing power and changing the way society's interact. in our interconnected world it is ground us to isolate another major power. second, russia may be in a prolonged period of stagnation. but branding purpose and time
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spent and made sense for policy making it would remain a significant power. it has a world class diplomatic core, talent and scientific community, capable military. it's location in the heart of europe and asia, it's a major player and issue of importance to the united states. in europe, in the middle east, in east asia and the arctic. third, russia opposes the united states across a broad front. most notably, europe, asia, and the middle east. we cannot ignore these challenges. but that said, dealing with transnational issues, a vital interest to the united states, such as the strategic balance of
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proliferation and international terrorism will be considerably more difficult if we do not engage russia. moreover, in east asia, it makes no sense to drive russia into the abrasive china, which uses strategic competitor. and finally, as a new world order emerges from the current turbulence, we need to include russia in a way that's consistent with our long-term interests and values. in these circumstances, we cannot contain or isolate russia, nor is in our interest to do so. like wise, we cannot build a partnership in order to get our interest to crime. rather the stask to construct the balance of competition and cooperation at best advance america's national interest. one thing shouk the first steps of the new american administration, immediate task is twofold to ensure that the
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current kpcompetition does not spiral out of control and prevent the relationship from becoming a reflects adversarial one in which the primary goal of each side is to thwart the other. not a reward to talk to russia. and controllable crisis. and we need to do this so question elaborate our own policy and implement it effectively. second we need to tone down the rhetoric. putin and russia does not help us achieve our goals and third we need to put in charge much russia policy in contacts with moscow, a senior, trusted official. in order to send the co. hernt message to moscow. and finally, the last thing we need to do is think of russia in a global context. the crisis in syria is connected to the crisis in ukraine and
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europe. and what we do with russia and europe will have skons kwenss for what russia does with china which will have consequences for us in east asia. in an interconnected world, we need to engage russia and we need to keep in mind and proper balance between cooperation and competition. >> thank you very much, tom. and ran a few seconds over and we'll do the same for david and his team, david. >> thanks kurt, very much, thanks to tom and paul for joining me in this debate and thanks for coming. what kind of regime would our colleagues have us reengage with? i think it's important to look at the record. and let me describe the past 17-plus years that russia has been ruled by vladimir putin. it's a russia that shares neither our values to say the least nor our interests. to remember that putin came to power in 1999, as prime minister and then president the following year against the backdrop of
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mysterious bombings in september of '99 that killed nearly 300 people. used brutal force against chechnya. and created an environment in which government critics, journalists, activists, jail, harassed, or killed. hunted down those who oppose a regime even in the west like alexander. created a massive hypocrisy who's best export to the west is corruption. the cyber attacks against astone ya and one against ukraine in 2014, kidnapped an intelligence officer in 2014 the day after president obama visited thailand, invade georgia in 2008, failed to live up to any of the sor co. zi cease it's fire plans. and invaded ukraine of course in 2014 illegal in next crimea.
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has failed to live up to a single condition under the mingsed agreements that have been put forward. bears responsibility that killed 298 people, cut off energies to neighbors and launched a brutal military campaign in syria, which targets not been isis, but any opposition to assad, deliberately targets hospitals, aid convoys, bakeries, subduing centers in aleppo causing unprecedented death and suffering amounting to war crimes. he has no regard for international law, following through on goodwill negotiations including the ceasefire that u.s. and russia struck on syria. russia has withdrawn, positioning nuclear missiles. it's threatened the use of nuclear weapons against those that would host missile defense sites. engaging in military muscle
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flexing including the ugly reckless and dangerous buzzing of nato ships and aircraft. hacking of e-mails and attempts to discredit, if not influence the u.s. elections to say nothing of it's efforts to meddle in european politics, international sporting events, demonizing the west and seeks to block neighbors aspirations for closer ties to the west, denying them their right to determine their own future and trampling on basic principles of sovereignty and territorial integrity. how many more neighbors does boount have to invade? how many more ukrainians and syrians have to be killed? how much worse does a crackdown inside russia have to get before we say enough? before those who would advocate for reengagement strategy would realize that that would not only be futile, but possibly dangerous? >> and what david is describing is not a random act.
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this is a pattern of complete disregard and breaks, a pattern of respect, sovereignty of independent states and of course a brutal disregard for basic human rights. this pattern clearly shows us that russia is not a trust worthy partner and many administrations, both republican and democratic have trited to engage with russia and they have failed. and that's because russia is playing a game of smoke and mirrors. just this week in the f.t., the financial times, in an interview that russia's ready to turn a new page. the next day, the deputy foreign minister said that the and we have seen this movie before. playing the smoke and mirrors. let's not fall for it again. >> what i detect here are two differences. one of them is tone about how we look at russia. and the other one is tactical.
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which is russia's a problem, they're against us, and that's why we need to engage them. versus engaging them that way will only encourage worse behavior in the future, paul. >> let me say several things. they're aauthoritarian country, let's not have illusions to that. that the united states deals very regularly with a number of other aauthoritarian countries, saudi arabia would be another. a number of them actually are close part anywheres with the united states. we find a way to deal with those governments we believe that the united states has important interests at stake and we don't have another choice. relatedly, can the united states have a meaningful impact on
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russia's domestic governess during a policy-relevant time frame. i would argue, no. we don't know how quickly the russian political system may evolve or actually if it will at all. we have the russia that we have. we need to deal with the russia that we have. the united states and russia have different interests in a number of areas. it's not easy to deal with the different interests. there's a interest of trust, absolutely. but look, would we successfully got rid of most of syria's chemical weapons without trusting them. we don't actually need to trust russia. in order to be able to accomplish things with russia.
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what we needed to able to do is to understand how russia defines it's interests. and to structure our engagement with russia in a way that creates real igsic incentives and penalties that can shape russian dmukt ways that we believe reflect our own interest. >> okay. >> and then david and lena, back to you for two minutes. >> sure. just in response to that. we're not calling for complete isolationism and cut off relations. even during the cold war when we faced a bigger adversary, the soviet union where russia is today, we had diplomatic relations. i think we can still find those areas of cooperation with russia and we should perhaps in the arctic, perhaps not proliferation. but diplomacy only works when you know that your partner on the other side of the table will
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aside be the agreement that you reach. and russia can take steps to show they can be a trust worthy partner, the door is not closed in any way. again, this is not about complete polarization of relations or isolationism outright. russia could take these steps, for example, they could abide by the minsk agreement that they signed and pulling weapons and soldiers out of western ukraine. it could give crimea back to ukraine. it could stop ruthlessly murdering civilians in syria. and it could stop threatening the world with a nuclear war. talk about ramped up rhetoric. it's not us that needs to tone it down, it is russia. it could do all those things, but the point is that it chooses not to. >> let me now pose a few questions here, and let me take it first back to tom and to paul. because paul gave an example in his answer about engaging russia and well it got rid of syrian
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chemical weapons. and i think a lot would say other chemical weapons in the civilian populations and the war's gotten worse. so can you give me examples of which engaging russia and how that engagement worked? give me examples of when it's actually produced a good result. >> how much time do i have? two minutes? >> two minutes. >> it's not a matter of trust. it's interest. if you go back to the bush administration, afghanistan, the first three months against al qaeda and taliban. we had superb cooperation with the russians. the russians were instrumental in our ability to get to kabul and overthrow the taliban and al qaeda in a short period of time that we did. if you look at not proliferation, again, during the bush administration, we signed a number of agreements with russia and how we were going to secure nuclear facilities, not only in
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russia, but globally. we put together a global partnership to combat nuclear terrorism which now has four or five dozen members. it's not something that we talk about all the time, but it's still in effect and still plays a vital role in securing our interests and russia's interest. people will argue what we've done with russia. that's an accomplishment to the obama administration. we did that with russia because our interest lapped, not because we trust each other. for our ability to monitor where we don't have sufficient trust. the iran deal is something that will be as controversial, but yet the two countries came together with four other countries in order to put together something that put off the development of weapons in
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iran for at least ten years, if not longer. so when our interests are aligned, there are many things that the united states and russia can do together that are advantageous to us. if we cut off engagement, if we put on the table that only if you follow this set of rules, if you agree with this, can we work in third areas? we're going to harm our own interests, we're not going to get what we need in order to make ourselves secure, make our allies secure. and advance prosperity around the globe. your team, go ahead. >> i agree with what tom just said, both the bush administration and the obama administration came into office eager and interested to work with russia. and tom cited a number of accomplishments that we're done between both countries and the governments on both sides and yet at the end of the bush administration, u.s.-russia relations were at the worse
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state. obama came in, wipes the slate clean and here we are with obama's administration winding down. we are in an even worse state of the relations with russia. what's the common denominator? vladimir putin. we don't to want demonize putin, at the end of the day, let's remember that putin's interests don't coincide with russia's national interest. putin's number one interest is staying in power, second, staying in power, and third, staying in power. he'll whatever is necessary including making up these myths that the southwest trying to overthrow him. we have the color revolutions, spooked by the arab movements in 2011, and he has to drum up this notion that we're trying to overthrow his regime when in reality, we're not. >> let me -- >> can i jump in here? the first clinton administration also started trying to cooperate with russia. and when they left office,
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relations were at the worst state since the break-up of the soviet union. it's a cycle. it's not simply putin, i think there's a larger problem of how we deal with russia and how we come to terms where with and somehow you simply remove poout than things get better that this is a personal issue that it's about putin and his desire, i think and russia problem that we have to deal with, there's structural aspects and unless we think through those, we're not going to come to a type of engagement or relationship that is going to advance american interests. >> let me just add one point to what tom said. i think we have become accustomed over the last 20 years to the form of engagement and other countries. in which we tell them what we want them to do and then we do.
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and in the immediate aftermath in the cold war, it was understandable why that would work. russia was a profoundly weak country. it was on the united states and the imf and bank for money to keep the economy afloat and to keep the political system stable. and that's not the case anymore. and we cannot realistically hope to work with russia in a manner that imposes our preferences. it has to be a back and forth. that's the way that international diplomacy has worked. that's the purpose. of international diplomacy. >> okay. >> the other team a chance here. >> so just quickly, we don't have a russia problem. we have the putin regime
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problem. sure, it's not just one individual, though of course he is the decisive figure in russian politics. it is a regime. it's corrupted the whole political elite to a large extent. i wouldn't say we have a russia problem. i don't think we have problems with russians, we have a lot in common with russians and a lot has been done through exchanges. we have the problem with the leader of the country who demonizes the west, belittles us and threatens our allies. that's the problem. similarly, it isn't a lack of communication, how many times has john kerry met with sergey lava. it is not lack of communication. chancellor merkel, how many meetings has she had? phone calls with putin. it isn't a lack of understanding of what we're dealing with here, the problem isn't the kremlin. >> let me ask

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