Former Federal prosecutor Chuck Rosenberg notes on Lawfare that, following testimony from career Justice Department prosecutor John Elias, AG Bill Barr may be giving vent to a personal dislike in an inappropriate manner:
Elias told the Judiciary Committee that proposed mergers in the cannabis industry “[did] not meet established criteria for antitrust investigations.” The targeted companies had low market shares in a fragmented industry. Yet his group was ordered to open investigations into these disfavored companies. Elias added that “[w]hile these were nominally antitrust investigations, and used antitrust investigative authorities, they were not bona fide antitrust investigations.”
If Elias is correct, that is deeply troubling. I am not defending that industry; the nature of it is irrelevant here. I imagine Elias would be equally troubled—I would be—if antitrust resources were used improperly to target hospitals, airlines or energy producers. So, even if these unfounded investigations were ultimately dropped, as Elias explained, what is the harm? Why should we care? For several reasons.
For smaller businesses, the costs of managing a DoJ anti-trust can be overwhelming, as Rosenberg points out. And this is what makes this an underhanded approach to the marijuana business, which is a little puzzling when marijuana remains a Schedule I drug, with no official use.
I’m forced to speculate that Barr, or his backers, believe the political costs of attacking the marijuana industry directly, using the FBI to knock down the doors and arrest everyone, is simply too great; the fact that several states have legalized for medical use, and in a couple of cases even recreational use, makes it very plausible. Such a move on Barr’s part might result in such an uproar from libertarians that they might bolt the right-wing alliance; the libertarians in Colorado are an important part of the alliance to legalize marijuana. Trump, already in trouble, doesn’t need more pressure on those who are doubtful of voting for him already.
But, in an instance of Big Daddyism knows better, it appears Barr is doing what he can to cripple the industry. It’s disappointing to see an intellectual failure of this magnitude in the top law enforcement officer in the country. I’m not saying the people are always right. Long time readers know that I occasionally make noises about leaders having to actually lead, and that means sometimes taking public positions that are not actually popular.
But I emphasize public positions. It’s fine, even great, for the AG to participate in the debate on the anti-pot side. But to decide to attack the industry through a back door in the arrogant belief that his wisdom – in a party that isn’t known for its knowledge base – supersedes that of the people who gave him his job is reprehensible.
Bill Barr risks historical opprobrium.
