Interview with Justice Department attorney Wagner

by Paul Boerger, Mt. Shasta News
September 1st, 2011

Benjamin Wagner, the US Department of Justice United States Attorney for the eastern district of California, gave a wide ranging interview in Mount Shasta on Aug. 24 that included forest issues, medical marijuana, abortion and constitutional issues, and financial crimes.

Wagner said his area of responsibility ranges from the Oregon border to the Los Angeles county line. He represents the Attorney General’s office within the DOJ currently headed by Attorney General Eric Holder.

The DOJ oversees more than 60 agencies including the Office of the Attorney General, Federal Bureau of Investigations, Drug Enforcement Agency,  Bureau of Alcohol, Tobacco, Firearms and Explosives, Civil Rights Division, Federal Bureau of Prisons and Criminal Division.

Wagner said the visit to Siskiyou County was to establish personal relationships with District Attorney Kirk Andrus and Sheriff Jon Lopey and attend the California State Sheriff’s Association general meeting.

“We intersect a lot,” Wagner said of his meetings with Andrus and Lopey. “They work in task forces we work in. They refer cases to us. A good working relationship is very important.”

Forest fires
Wagner said the DOJ contains a civil department that pursues forest fire litigation in cases where negligence has caused the fire.

“We are most well known for our criminal prosecutions, but we have a whole civil side,” Wagner said. “One of the most active things we do is in forest fire recovery litigation. We can sue to recover both fire suppression costs the federal government takes on when they fight fires, but also the damages and loss to federal lands.”

Wagner noted that recovery costs can include not only timber, for example, but ecological restoration costs as well. He noted that PG&E was found negligent in a fire for not properly maintaining wires that ignited trees and the department recovered $102 million in damages.

Medical Marijuana: not interested in the ‘truly sick’
Wagner said his meetings with Andrus and Lopey were not to coordinate a raid of the area’s marijuana dispensaries. “That was not the purpose of our meeting,” Wagner said.

He responded to the confusion the public has over the Obama administration’s position on medical marijuana. Memos released initially after taking office seemed to indicate that President Obama was directing the Justice Department to leave medical marijuana alone, while recent memos appear to contradict that position. Wagner was clear that state laws on marijuana do not supercede federal law.

“There should be no ambiguity on the Justice Department’s position on this,” Wagner said. “There has been some confusion. The position really is that it is illegal as a matter of federal law. It’s not medicine. It’s not recognized. There is no medical marijuana defense for federal prosecution under the Controlled Substances Act. Where we are going to concentrate our resources as federal prosecutors is not on people who are truly sick. By truly sick we mean not people who say they have anxiety or a bad back.”

Wagner said that the use of marijuana for conditions such as AIDS, cancer or glaucoma, while illegal, would be considered a low priority for prosecution.

“Their use of medical marijuana is still illegal under federal law, but as matter of prosecutorial discretion in using our resources that is not of interest to us,” Wagner said. “The Ogden memo made it clear that we were not going to prosecute seriously ill patients and their caregivers.  It’s not an efficient use of our resources. By caregivers, we didn’t mean dispensaries that call themselves caregivers but are really in the marijuana business and label themselves caregivers. We are, however, pursuing investigations against dispensaries and against cultivators of medical marijuana. We want to send a message. Our goal is not to prosecute every possible person in the state, but to try and establish a real federal law enforcement presence.”

Wagner had no directions for sick people to obtain medical marijuana under California’s Proposition 215 that allows dispensaries and the use of medical marijuana.

“I understand there is a divergence between federal and state law, but I really can’t give people advice on that. The DEA just denied a request to reschedule it from Schedule 1,” Wagner said. “It’s just not recognized by the FDA as medicine. I realize that some people are taking it as medicine. I don’t make the rules I just enforce them. While I realize there is a divergence between federal and state, my position and my job is to enforce federal law. We’re not going to prosecute everybody, but we have to have the flexibility to enforce federal law on a case by case basis.”

The DEA maintains a drug Schedule list that is generally understood as a declining list of perceived danger from Schedule 1 as the most dangerous, that lists heroin and marijuana, to Schedule 5, that lists codeine based cough medicine.

Schedule 2, for example, lists crack cocaine and methedrine below marijuana, leaving the perception that the federal government believes marijuana is more dangerous than crack or meth. A petition to move marijuana off Schedule 1 was recently denied by the federal government.

Wagner said the Schedule takes into account more factors than toxicity and danger to the public.

“It’s not necessarily a ranking of how dangerous or how addictive the drug is. There are a lot of factors that go into it. What they look at is whether or not there are any potential uses of the drug or substances within the drug that can be used for different controlled circumstances. The ranking really is the degree to which the substance can be used for any recognized purpose,” Wagner said. “If you put it on Schedule 2 or 3, it may have some industrial purpose or medical purpose or some other purpose that the schedule defines the degree of control over that substance by the DEA. It’s not just 1 is the worst and 5 is the least worst. It’s very complicated and a lot of it is that most people look at it as a law enforcement issue, but the scheduling really is a product of overall regulation of pharmacological products, how they are used, how they are treated as an administrative matter by the DEA and FDA.”

Wagner noted that the process by which drugs are scheduled is not done by the DEA and that the recent denial of a petition to move marijuana off Schedule 1 involved several agencies including the Department of Health and Human Services and the Food and Drug Administration.

“It’s done by HHS and the FDA plays a role. They review all the literature. They determine if there are any scientifically proven uses, what are the costs and benefits of those uses, what are the long term dangers versus the short term dangers, how does it affect young people, addiction issues and what is the potential to be diverted,” Wagner said. “All of those factors go into it. Ultimately, HHS determined that while there is some scientific evidence that it has some medical properties and some benefit there are also a lot of studies that show it has a negative effect. It is a very complicated substance. We don’t currently have a scientifically proven basis in which to classify it as a lower schedule drug that has medical benefits.”

The decision to deny the rescheduling says in essence that marijuana “has no currently accepted medical use in treatment in the United States.”

For the complete denial response from the government, visit the Federal Register website at www.gpoaccess.gov and search for medical marijuana.

There is disagreement within the medical and legal community on the medical uses of marijuana.

A 1988 decision by DEA administrative law judge Francis Young, for example, concluded that “The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision.”

Americans for Safe Access, an organization that supports medical marijuana, recently gave the Obama adminstration an “F” on its annual government report card for medical marijuana. ASA claims the administration is ignoring a large body of scientific evidence that supports medical marijuana. For more information, visit the website at www.safeaccessnow.org.

Abortion and Constitutional Issues
Roe vs Wade established the constitutional right of a woman to have an abortion under certain broad guidelines. Several states have passed laws further restricting the right to and the conditions under which women may obtain abortions. Wagner said the Attorney General’s office is limited on where it can intervene in constitutional cases.

“It would really depend on the context under which it came up. We don’t have free floating authority to start a lawsuit on any constitutional issue. We have  to have some sort of federal interest, and abortion is a very uniquely personal and private matter. There has to be a case or controversy,” Wagner said. “If we say, for instance, we don’t like that law in Kansas, we think it’s unconstitutional, the courts are not going to entertain a lawsuit that says the US says the law is unconstitutional and the state says it’s not. There has to be some actual aggrieved person, some actual harm. What can happen is that an individual in the state of Kansas who is denied her rights under Roe v Wade sues the state of Kansas and we can file an amicus brief that says we support the plaintiff.”

Wagner explained that an amicus brief is a support of the plaintiff, not a party to the suit. Where a federal interest may be involved, such as federal funding or a clear federal function, then the government could be an active party to a suit. Wagner said the recent federal suit against the stringent Arizona immigration laws was such a case where the federal government has a clear constitutional mandate to secure the borders.

Financial crimes
Wagner said the Department of Justice has broad authority over financial crimes such as securities, investment and mortgage fraud. As the country is geographically divided for investigation and prosecution purposes, Wagner said he has not been involved in the high level Wall Street investigations.

“I’m responsible for what occurs here in California. My efforts have been focused in the mortgage fraud area,” Wagner said. “We have done tons of mortgage fraud prosecutions against real estate professionals, people like appraisers, mortgage brokers and bank employers who were complicit in mortgage fraud. In the last two years we have charged probably 100 people in the mortgage fraud area.”

Although not directly involved in the Wall Street investigations, Wagner said  “there is a lot of understandable frustration and anger at companies that were engaged in high finance.”

“There have been some very significant prosecutions, but in the criminal realm there is a very significant difference between wrongdoing as a general matter and a provable criminal fraud offense,” Wagner said. “Trying to show that is difficult when you are talking about executives that are well advised by counsel, surrounded by experts, economists, lawyers and others every step of the way. Trying to show a criminal act is going to be difficult. Part of what got us into this mess was a lot of reckless behavior on Wall Street that was not necessarily criminal. That’s not to say we’re not looking at them. The outrage that people have is understandable, I share it, but it doesn’t necessarily mean there will be a head on the wall at the end of the day.”