Donald Trump seems determined to live in the past. He openly stews in pent-up grievances and discredits the prior administration at every opportunity. In his first two months in office, it seems as if he has criticized his predecessor more than any other president has ever done. So, no one should have been surprised by the news that the president now wants to undo the preemptive pardons Joe Biden granted on his way out of the White House — a wildly unconstitutional proposition.
Trump took to Truth Social in a late-night rant over the weekend to denounce the House January 6 committee and “The ‘Pardons’ that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others…” And, in typical Trumpian style, the president announced in all caps: “They are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT…”
Why?
“(B)ecause of the fact that they were done by Autopen. In other words,” President Trump suggested, “Joe Biden did not sign them but more importantly, he did not know anything about them!”
As is his wont, the president offered no evidence.
But that did not stop him from venting about the wrong that Biden and the House committee had done to him and threatening them: “Those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two-year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level.”
And spinning the tall tale even further, he said that members of the committee “were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!”
Autopens? Really? With all the problems confronting this country, our president is focused on autopens.
As Axios explains, autopens are “used to make automatic or remote signatures” and have been used by public figures, including presidents, “for decades.” In 2005, the Justice Department’s Office of Legal Counsel (OLC) issued an opinion that then-President George W. Bush and any other president could sign a bill by directing a subordinate to "affix the President's signature to it." That signature would, OLC said, be valid and as binding as if the president had signed it himself. OLC could not have been any clearer.
All the fuss about autopens is doubly strange coming from someone who argued with a straight face that he could declassify secret documents without signing anything.
And to satisfy constitutional purists, OLC noted that “Neither the constitutional text nor the drafting and ratification debates provide further guidance regarding what it means for the President to ‘sign’ a bill he approves…. However, the word ‘sign,’” it found “had a generally understood legal meaning that was well established at common law when the Constitution was drafted and ratified and that continued throughout the Republic’s early years (and beyond).”
“Under this well-settled legal understanding,” the OLC opinion continued, “an individual could sign a document by directing that his signature be affixed to it by another.” As if that were not enough to settle the matter, it concluded, “the President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President’s signature to such a bill, for example by autopen.”
OLC’s opinions have great weight and are considered authoritative statements about the law unless or until a court rules to the contrary. And what they say about signing a bill would also apply to signing a pardon.
Except, nothing in the Constitution requires a president to sign a pardon. Article II says only that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” It does not specify any particular form or procedure to make such a grant.
Moreover, American courts have given presidents a wide berth in using their power to grant pardons and reprieves. In the mid-19th century, the Supreme Court called the President’s authority to pardon “unlimited” except in cases of impeachment. It said that authority extended “to every offence known to the law and able to be exercised either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”
More than one hundred years later, in 1974, it reaffirmed that view and held that the Constitution gives the president what it labeled “plenary authority.” Surely, that authority encompasses the choice of whether to use an autopen. And, as Professor Jeffrey Crouch, an expert in federal executive clemency, observes, not only can they do so, but "(o)ther presidents have used an autopen to grant pardons."
In 2024, a federal appeals court ruled that a pardon did not have to be issued in writing.
But for President Trump, well-researched and reasoned legal opinions, court decisions, and the views of experts matter less than the latest conspiracy theory floated by his right-wing, MAGA allies. As Newsweek reports,the president is likely getting his information about Biden’s pardons from the Heritage Foundation’s Oversight Project. This is the same conservative think tank that gave us Project 2025. As the Oversight Project tells the tale, “the Biden White House used an automated signature to place Biden's name on several key documents that happen to counter Trump's agenda.”
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Would anyone be surprised if the Trump administration employed an autopen during its first term? Yahoo News provides the answer.
Presidents including Trump have long used an autopen to affix their mark to documents that then have the power to transform America and the lives of its citizens.” Trump, it says, “has used the autopen to sign executive orders in both his terms…. Many orders from his first term on the Federal Register website appear to be done by autopen.
Moreover, all the fuss about autopens is doubly strange coming from someone who argued with a straight face that he could declassify secret documents without signing anything. “You’re the president of the United States,” Trump claimed, “you can declassify just by saying it’s declassified, even by thinking about it.”
At least President Biden never claimed he could pardon people just “by thinking about it.”
By questioning the validity of the House Jan. 6 Committee pardons, Trump may hope its members will have reason to fear that Attorney General Pam Bondi will launch a criminal investigation. Even if a court dismisses out of hand (as any court surely would) his wild claim to be able to declare a pardon granted by a previous president invalid, starting such an investigation would itself be a form of retribution.
If all that comes to naught, the president may get pleasure from using the autopen nonsense to replay some of his greatest hits and suggest, yet again, that “a senile Biden was not in charge as president.” At the same time, it allows him to promote one of his favorite conspiracy theories, namely that his predecessor was the tool of a “‘deep state’ (that) pulled the strings.”
So stay tuned for the next episode of autopen-gate. The distraction of such a baseless conspiracy theory is just the type of bait Trump knows his MAGA base loves.
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