Pot Good, Fentanyl Very Bad – Update for December 23, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRUMP DOES THE ‘WEAVE’ ON DRUG CRIMES

President Trump is proud of “the weave,” that oratorical puzzlement that sounds to some like Grandpa forgot to take his meds. Last week, Trump tried it on drug policy.

On Monday, Trump signed an executive order declaring fentanyl and its precursors  as “weapons of mass destruction.” Three days later, he signed another order directing federal agencies to reschedule marijuana as a Schedule III rather than Schedule I.

The fentanyl executive order instructs federal agencies, including the Depts of Justice, State, Treasury and Defense, to pursue fentanyl-related crimes more aggressively and to explore military cooperation with civilian law enforcement.

The Atlantic last week reported that while the

WMD designation may not have immediate legal implications for Trump’s military powers, it could potentially change how domestic drug cases are prosecuted. The use of a WMD against people or property in the U.S. carries a maximum sentence of life in prison; if someone dies, prosecutors can argue for the death penalty… That could impose a life sentence on any person who uses drugs laced with illicitly manufactured fentanyl, or anyone who gives drugs laced with illicitly manufactured fentanyl to their friend. As of now, the Trump administration has offered no guidance on how this might play out.

Earlier this year, Attorney General Pam Bondi claimed that the Trump administration’s fentanyl seizures had saved the lives of 258 million Americans — three-quarters of the population of the entire country. However, in September, Trump claimed that “300 million people died … from drugs” in 2024, which would be almost the entire US population, and about five times as many people as died that year from anything anywhere in the world. In fact, CDC numbers show that fentanyl was involved in 42,233 deaths between April 2024 and April 2025.

Drug defendants with fentanyl in their cases probably should not expect any break from this Administration any time soon.

A different story has played out on marijuana, although Trump’s executive order issued last Thursday on weed changes more for the cannabis industry’s bottom line than the architecture of prohibition.

Under the Controlled Substances Act, marijuana is currently placed in Schedule I, a category reserved for substances deemed to have “no currently accepted medical use.” That’s the most restrictive controlled substance category — more serious than where fentanyl is scheduled — and clearly at odds with at least 40 states that have legalized medical marijuana.

Trump’s executive order on Thursday prompts the Justice Department to hasten the rescheduling of marijuana as a Schedule III drug, alongside common prescription medications like Tylenol with codeine.

The Biden administration began rescheduling in the fall of 2022, but left the matter unfinished despite its promise to get it done. Trump’s order — which directs Attorney General Pam Bondi to hasten the process of loosening federal restrictions but does not include a timeline — comes after an intensive lobbying campaign from cannabis business interests.

Although the Wall Street Journal complained that by his executive order, Trump is going “for the Stoner Vote,” the President was lobbied hard by the commercial cannabis industry for the change, due to the banking and tax relief such a reclassification will bring to the business. “I’ve never been inundated by so many people as I have about this particular reclassification,” Trump said.

While Schedule III drugs can legally be prescribed, they still require Food and Drug Administration approval, which marijuana lacks. While, in theory, the order could reduce or eliminate some federal criminal penalties, statutory mandatory minimums would remain unchanged unless Congress amends 21 USC §§ 841 and 960. It is possible that some Sentencing Guidelines would change, but any such modification is several years off and would have to undergo an additional proceeding to become retroactive.

Even under §§ 841 and 960 as now written, federal prosecutors have not prioritized marijuana cases in recent years, especially regarding state-level approved marijuana commerce. As of January 2022, no one in federal prison was doing time solely for simple marijuana possession. Marijuana trafficking cases are down 58% since 2020, according to the U.S. Sentencing Commission.

What might this mean for 18 USC § 922(g)(3), which prohibits users of unlawful drugs from possessing guns? One firearms trade group has reminded its members that “state legalization of marijuana similarly has no effect on legality under 18 USC § 922(g)(3), and possession by a purchaser of a state medical marijuana card should be taken as evidence of unlawful use.”

What’s more, Trump taking a more accepting stance toward marijuana could prompt Congress to revisit the Controlled Substances Act, either by amending it to exempt state-level marijuana legalization regimes or by de-scheduling the drug from federal regulation altogether.

Trump’s order could also impact United States v. Hemani, currently pending in the Supreme Court. Hemani was convicted of a § 922(g)(3) offense, and SCOTUS has been asked to rule on whether disarming marijuana users complies with the 2nd Amendment. A decision is expected by June 2026.

Executive Order, Designating Fentanyl As A Weapon Of Mass Destruction (December 15, 2025)

Executive Order, Increasing Medical Marijuana and Cannabidiol Research (December 18, 2025)

The Atlantic, The New ‘Weapon of Mass Destruction’ (December 16, 2025)

Centers for Disease Control and Prevention, Provisional Drug Overdose Death Counts (September 17, 2025)

U.S. Sentencing Commission, Quick Facts – Marijuana Trafficking (FY 2024) (May 2025)

Roll Call, Press Gaggle: Donald Trump Speaks to Reporters Before Air Force One Departure – September 14, 2025 

The Hill, Trump signs executive order to expedite marijuana rescheduling (December 18, 2025)

CNN, Trump signs executive order expediting marijuana reclassification after lobbying from cannabis industry (December 18, 2025)

The Reload, Analysis: Trump’s Marijuana Moves Unlikely to Immediately Impact Gun Owners (December 21, 2025)

~ Thomas  L. Root