On Monday, President Donald Trump signaled that he intends to nullify the presidential pardons—issued to those on the House Jan. 6 committee that investigated Trump—executed by President Joe Biden because, he said, they were signed via autopen.
“The ‘Pardons’ that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen,” the President shared on his social media platform Truth Social. “In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden.”
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But according to the U.S. Constitution, the President has no such authority to overturn his predecessor’s pardons, especially not based on the type of signature, legal experts say. “The Constitution doesn’t even require that the pardon be written, so the idea that the signature is by autopen rather than by handwritten signature seems not relevant to the constitutionality because Article II just says that the President has the power to pardon,” says Bernadette Meyler, a Stanford Law School professor and constitutional law expert.
Autopen is an electronic signature that allows individuals to sign a document without physically being there. The signature mimics a handwritten signature, but is done by a computer. A vast number of statutes and other documents have been signed by autopen, experts say. For instance, former President Barack Obama signed a national security measure via autopen while he was in France. Meyler says that if presidential pardons were to be invalidated because of an autopen signature, that could bring into question other policies that were signed by such measures. “Are those statutes that were signed by autopen now not the law anymore?” she adds. “When so much is being automated and put online, requiring some literalness in the signature really would be a step backwards.”
A 2005 guidance from the U.S. Department of Justice (DOJ) noted that a President does not need to “personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law. Rather, 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.”
Jeffrey Crouch, a professor at American University, told Axios that pardons are final so long as they are valid. “Other presidents have used an autopen to grant pardons,” he added.
But aside from criticizing the use of the autopen, Trump also appears to be undermining President Biden’s cognitive ability at the time such pardons were issued. “He knew nothing about them, and the people that did may have committed a crime. Therefore, 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. The fact is, they 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,” Trump wrote on Monday.
In doing so, Trump is adding to the concerns flagged by Missouri Attorney General Andrew Bailey, who called on the DOJ to investigate Biden’s actions on March 5. “I am demanding the DOJ investigate whether President Biden’s cognitive decline allowed unelected staff to push through radical policy without his knowing approval,” Bailey posted on X.
If Trump were to try to prosecute someone who received a presidential pardon, experts say the case would likely go to courts, where Trump’s actions are unlikely to stand. “I can’t imagine the court saying that it wasn’t a valid pardon because of the autopen issue,” says Meyler. “Biden made statements regarding these pardons, so it would be hard to show that they weren’t a decision of the President.”