The defendants pointed to dozens of statements made by Holder and even the president, and specifically the now-infamous Ogden Memo. This was a publicly released document in 2009 document, written by David Ogden, Eric Holder’s deputy, that instructed federal law enforcement officers nationwide to leave medical marijuana growers alone as long as they were abiding by state law. This memo was reported in the national press, and local papers too, as a virtual ceding of jurisdiction by the federal government. “U.S. Won’t Prosecute in States that Have Medical Marijuana,” heralded a New York Times headline.

It’s not a stretch to assume that some of these growers made some infractions of state law. But others went out of their way to play by the rules. Take Tom Daubert, age 60, charged by Cotter with 80 years in prison. I was the senior counsel to Gov. Brian Schweitzer, and worked with Daubert on occasion because he was not only a provider of medical cannabis but also the lobbyist for the industry. He would stop in to meet with the governor’s staff every so often to get our opinion of the things he was lobbying for, notably a tightening and clarifying of the very vaguely written law (it came to life via a ballot measure, not by legislation) so that people would have a stronger idea of what they could do legally.

Daubert did what other growers did: He worked with state government. He gave regular tours of his outfit to the sheriff, the police, state legislative leaders and even the head of the state narcotics control office, to show them what he was doing and get their assessment. None of these officials is known to have ever raised any objections about his work. One such visit by a team of state officials was even captured by a documentary filmmaker. 

And Daubert was never charged with a state crime, nor, for that matter, were any of the growers that Cotter put away. And many, including Daubert, had actually left the business months or even years prior to being hauled in by the feds. Cotter reached back in time to get them.

Out of fairness, one would think, people who relied on the attorney general’s assurances should be cut a break, especially when no showing was made, in court or elsewhere, that they had they failed to meet Holder’s standard — obey the state law.

In his recent comments to the press, Cotter said they all broke state law, but he refused to provide an example when asked. I tried to contact Cotter’s office to poke at him a little on this question. I was told that my questions must be first submitted in writing, for review. I submitted a few, but never heard back.

Some defendants weren’t even growing, but were just investors. Steve Sann, a 58-year-old realtor, philanthropist and minister from Missoula, provided a building to a state-certified medical grower. He says he did so with the help of several lawyers who drew up the contracts and gave him advice as to how to comply with state law and the federal guidance.

Sann was charged with “maintaining drug involved premises” and threatened with two decades in jail. The judge gave him probation after a long line of highly reputed community members showed up to testify as character witnesses and to express outrage at how Sann was being treated. He eventually had to forfeit his building to the federal government.

But the Ogden Memo was held to offer no protection to the defendants. The judge followed long-established precedent than an entrapment defense based on a claim that the defendant had relied on assurances from a government official is only available in very limited circumstances, where the assurance is made directly in person to the citizen rather than in the form of a general, published prosecutorial guideline.

The defendants, prosecutors said in an argument that carried the day, should have done their homework more carefully, and not simply relied on a memo from the U.S. attorney general. “A policy is not a promise,” was how one prosecutor framed it to the judge.

A policy might not have the force of law, but I would argue that a policy is most definitely a promise, especially if it is reasonably interpreted by citizens who are looking for guidance as to how to proceed, and particularly in a case where the attorney general states that a new set of laws — state laws, as opposed to federal laws — will now serve as the governing code for assessing the legality of a citizen’s conduct. And just because the feds can prosecute, doesn’t mean they should.

Even the judge at one of the hearings made this point.  What, Judge Dana Christensen asked the prosecutor during a pretrial hearing, was the defendant supposed to do? He’s running a business, and he’s been given a marker by the attorney general, guidelines, as to how to proceed. How can he make basic business decisions, Christensen asked? The prosecutor had no response. The judge also asked the prosecutor why, if growers in California all got 45-day cease-and-desist letters, no such warning were issued in Montana.  “I don’t know,” was the prosecutor’s answer.

He may not know, but I do. Let me explain it to him. If notices had been sent, there’d be nobody for Cotter to put in jail.

As a matter of basic fairness, it’s difficult to see how Holder, or the president, can approve of the way in which Cotter and his colleagues at the DEA, ATF and other agencies went about the wholesale imprisoning of medical growers with such broad action.

Perhaps, then, Cotter’s recent airing of his opinion about the efficacy of marijuana as medicine (he states no scientific basis for his claim) can be viewed as a long-awaited missing piece of a puzzle: a motive for what he and his colleagues did. None of us who watched the drama unfold, with the dramatic raids, the emptying out of greenhouses by men wearing oxygen tanks and masks and snorkels, quite understood why the feds were being so heavy-handed, why Cotter was so righteously obsessed with bringing people down and making such a showing, so disdainful of states’ rights, and so defiant of Eric Holder’s guidance.  Now that he’s aired his views, we understand: He sees marijuana providers as nothing more than drug dealers, by definition. And he is not about to waste his time following guidance from an attorney general or president who thinks otherwise.

And some of the government’s tactics in Montana were simply over the top. Charges were piled on high and thick, basic federal items like “possession with intent to distribute” or “conspiracy to manufacture,” carrying enormous penalties and designed to give the defendant little choice but to say “uncle,” and plea-bargain for a lesser sentence.

And one charge, used pervasively, was almost laughable if you know anything about Montana: “use of a firearm in furtherance of a drug crime,” by which was meant that a defendant kept a shotgun in his greenhouse, or in his truck that he used to transport seed and fertilizer, or that he carried a sidearm.  Montanans commonly keep guns on their person, in their vehicles, at their homes, at their ranches, and at their place of business and especially if they have valuable wares on the premises. They require no permits. But the gun charge gave prosecutors powerful leverage because it carries mandatory prison time under federal rules.

The Ogden Memo actually made reference to guns, and it’s a good example of the questionable, circular logic employed by the U.S. attorney’s office in its interpretation of the Justice Department guidance. The memo has a section in which it advises prosecutors on how to distinguish between legal medical marijuana activity, on the one hand, and illegal federal drug running, on the other.  Look for certain things, Ogden wrote, which will serve as an indication that the activity taking place is not kosher. One of these is “the presence of illegal firearms.” But again, the firearms in these cases were only illegal under federal drug enforcement statutes. Montana’s state medical marijuana law made no reference to firearms.

The Ogden Memo also mentioned “the presence of large amounts of cash” as a possible indicator that “trafficking” as opposed to “caregiving” might be afoot. The greenhouses in Montana, when raided, had large amounts of cash around, something that Cotter says is evidence of nefariousness (no allegation has ever been made that the growers were not paying taxes). But the cash was there for a simple reason: banks, too, were threatened by the feds. And so they refused to take deposits from medical marijuana caregivers. Many growers had opened accounts in the early years of the program, but the funds later were returned to them and the accounts closed.

In the end, only two of the defendants, out of 33 people convicted, rolled the dice and went to trial. One was Chris Williams, age 49, who refused to plead guilty because he felt he’d done nothing wrong. He went to trial in the face of an 85-year prison sentence, and lost. But Williams became something of a cause célèbre and there are now websites devoted to freeing him. So Cotter struck an unusual deal with him after his trial: If he would agree never to appeal the legality or constitutionality of his conviction, the feds would drop all the charges except the gun charge, which carried a mandatory five-year sentence. Williams took it.

What were some of the issues that might arise on Williams’ appeal? Prior to the trial, prosecutors persuaded the judge to bar the jury from learning anything at all about the existence of Montana’s medical marijuana statute, or about the Ogden Memo, or about the fact that the defendants believed their conduct to be legal.  All of it was ruled inadmissible.

Cotter is not finished. In recent weeks, his office has asked a federal appeals court to increase the sentences of many of the caregivers he put away. They were originally charged with around 80 years in prison; when they pleaded guilty, Cotter sought to cement the agreements with sentences in the 5-10-year range; but the court would not go along with it in many of the cases, and gave some defendants 18 months or less. Cotter is seeking to have the appellate court overturn these sentences for their leniency. He wants more punishment.

Not surprisingly, about a year after the raids in Montana and elsewhere took place, the U.S. Justice Department issued a new guidance memo, billed as a “clarification” but clearly meant to retract the Ogden Memo. Known as the Cole Memo, this one reminded everyone that growing marijuana is a federal crime regardless of state law.

Whether President Obama is inclined to review these convictions remains to be seen. He has been very silent on the behavior of some of his regional prosecutors in this area and Holder has not criticized any of it publicly. There is no shame in the administration’s having issued the Ogden Memo, clumsy though it may have been. As Chris Lindsey, a caregiver and patient (with Crohn’s disease) who got charged by Cotter with 80 years in jail, “Holder did his best. He tried to create a workable solution.”

Lindsey is a former public defender, and he worked closely with state law enforcement during his time as a partner in Montana Cannabis Inc., here in Helena. He was one of the lucky ones — he ultimately pleaded guilty and got three months house arrest.

I asked Lindsey if he has considered applying to the White House for a pardon. Lindsey says he might, but he thinks he’d be wasting his time given the way in which the Justice Department has acted so far. “I doubt Obama is going to spend any time worrying about people like me, ” Lindsey said. “I doubt he cares.”

I have trouble believing that. It was Obama himself who first articulated a framework by which the federal government should defer to states with medical marijuana laws, subject to citizens obeying state laws (which means that Cotter, who thinks medical pot is a giant fraud, must clearly think the president to be naive, and a sucker). Obama proposed this, in fact, during his campaign in 2008. It was the promise that led to the drafting of the Ogden Memo.

A promise, in other words, became a policy. And then the policy became a promise, leading to some very unfair, even unjust, treatment of American citizens who went into a business thinking it was legal. The Justice Department should review these prosecutions, and determine which ones might be appropriate for executive clemency.