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Donald Trump has indicated his intention to invalidate presidential pardons issued by Joe Biden to individuals involved in the investigations concerning Trump, claiming the pardons were signed using an autopen.
On Truth Social, Trump stated that the pardons granted by “Sleepy Joe Biden” to the “Unselect Committee of Political Thugs” are void due to the use of an autopen. He asserted that Biden did not personally sign the documents and was unaware of their contents, suggesting the necessary pardoning documents were not explained to or approved by Biden.
However, legal experts contend that the U.S. Constitution does not grant the President the authority to overturn pardons, especially based on the signature method. Bernadette Meyler, a constitutional law expert and Stanford Law School professor, explains that the Constitution doesn’t mandate a written pardon, making the autopen signature irrelevant to its constitutionality. Article II simply grants the President the power to pardon.
An autopen is an electronic signature that replicates a handwritten signature, enabling individuals to sign documents remotely. Experts note that numerous statutes and documents have been signed using autopens. For example, Barack Obama used an autopen to sign a national security measure while in France. Meyler argues that invalidating presidential pardons due to autopen signatures could cast doubt on other policies signed using similar methods. She emphasizes that requiring literal signatures in an increasingly automated world would be a step backward.
A 2005 opinion from the DOJ stated that a President is not required to physically sign a bill to enact it. The President can direct a subordinate to affix the President’s signature to a bill, such as through an autopen, to fulfill the requirements of Article I, Section 7.
Jeffrey Crouch, a professor at American University, asserts that pardons are final as long as they are valid.
In addition to criticizing the autopen usage, Trump also questioned Biden’s cognitive abilities when the pardons were issued. He suggested that Biden was unaware of the pardons and that those responsible may have committed a crime. Trump further stated that members of the “Unselect Committee,” who allegedly destroyed evidence during their investigation of him, could be subject to investigation. Karoline Leavitt, White House Press Secretary, echoed this sentiment during a briefing, questioning Biden’s awareness of the pardons and, when questioned for supporting evidence, directing reporters to investigate.
These concerns were previously raised by Missouri Attorney General Andrew Bailey, who urged the DOJ to investigate Biden’s actions on March 5, suggesting that Biden’s cognitive decline allowed staff to implement radical policies without his informed consent.
Experts suggest that any attempt by Trump to prosecute someone who received a presidential pardon would likely be challenged in court, where Trump’s actions would likely be unsuccessful. Meyler believes that a court would likely uphold the pardon’s validity despite the autopen issue. She notes that Biden made statements regarding the pardons, making it difficult to argue that they were not a decision of the President.
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