In March of 2011, federal agents in hazmat suits — guns brandished and sirens blaring — raided dozens of marijuana greenhouses and dispensaries in Montana, and arrested citizens who were growing pot in accordance with the state’s medical marijuana law. It all happened without warning — unlike in California and other states where fair notice, and lead time, was given to folks so they could close up shop. The timing of the raids was highly suspicious. They took place on the very day — the very hour, in fact — that the Montana Legislature was holding a much-anticipated hearing on how to tweak the medical marijuana statute, so as to cut down on recreational use and sham prescriptions, and also to clarify several parts of the law that were ambiguous.

The top federal prosecutor in Montana — Mike Cotter, the U.S. attorney appointed by President Obama in 2009 —  then charged the growers, their greenhouse workers, their bookkeepers, some of their spouses, and even their landlords who had simply provided buildings to the growers with decades in prison and in some cases virtual life sentences, all under federal drug trafficking statutes.

Now Cotter is breaking his silence and speaking publicly, for the first time, about his two-year crusade to shutter the medical marijuana industry and put its practitioners behind bars, in many cases for life sentences. And he is mincing no words. He says that pot has no medical value at all, for anyone, and that if you think otherwise, you are a sucker who has been duped “by slick Madison Avenue marketing” employed by pot dealers. He says pot is a dangerous drug and growing it is a federal crime that must be punished.

The opposite of what doctors have long believed about the benefits of marijuana for many patients, these comments go a long way in explaining much of what happened in Montana over the last two years.

When Cotter charged these citizens in 2011, he gave no credence to a very basic protest that they all made: they’d been assured in writing, by Eric Holder, the U.S. attorney general, that they could grow medical marijuana and the feds wouldn’t prosecute them.

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.