On March 17, U.S. President Donald Trump took to his social media platform, Truth Social, posting that he believes that the pardons former president, Joe Biden issued in his final days in office are “void” because the former president used an autopen to sign the documents. Trump also alleges that Biden was unaware of what he was signing.
“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 wrote, adding that, “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. He knew nothing about them, and the people that did may have committed a crime.”
The “Unselect Committee of Political Thugs,” Trump refers to is the House Jan. 6 Committee that investigated Trump following the riots at the capital on Jan. 6, 2021.
Biden issued a total of 4,245 pardons and commutations in his final hours as president. Among the notable recipients were his son Hunter Biden, pardoned for federal gun and tax convictions, and five other family members.
Biden also pardoned Dr. Anthony Fauci, retired General Mark Milley, and granted clemency to 37 federal death row inmates.
‘Autopen’ explained
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An autopen is a machine that can automatically reproduce an individual’s signature and is typically used when there are numerous documents that need to be signed by a single person. It also allows for documents to be signed without the person who is supposed to sign the document actually being present and opens the door for documents to be signed without the knowledge of the signature holder.
Trump says that Biden’s use of the autopen voids his actions, however a number of legal experts disagree.
Bernadette Meyler, a Stanford Law School professor and constitutional law expert, told Time, “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.”
In addition, guidance from the U.S. Department of Justice (DOJ) in 2005 said that the 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.”
Should Trump attempt to prosecute someone who received a Biden pardon, Trump would likely end up in court and his actions are unlikely to stand.
“I can’t imagine the court saying that it wasn’t a valid pardon because of the autopen issue. Biden made statements regarding these pardons, so it would be hard to show that they weren’t a decision of the President,” Meyler argues.
Trump unlikely to succeed
Never in the history of the United States has a presidential pardon ever been overturned or deemed void.
The power to grant a pardon is enshrined in Article II, Section 2 of the U.S. Constitution, which gives the president the authority to “grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.”
This power is considered “plenary,” meaning it is broad and largely unchecked.
There are a few scenarios where a pardon could become void or “overturned.”
One such scenario is when the person receiving the pardon rejects it. The Supreme Court ruled in Burdick v. United States (1915) that a pardon must be accepted by the recipient in order to take effect.
In the past, some presidential pardons came under intense scrutiny like President Gerald Ford’s pardon of Richard Nixon in 1974 and President Bill Clinton’s pardon of Marc Rich in 2001, both of which faced significant public and congressional criticism.
Marc Rich was pardoned by President Bill Clinton in 2001 for charges of tax evasion, racketeering, wire fraud, and illegally trading oil with Iran during the 1979-1981 hostage crisis, stemming from a 1983 indictment. He had fled to Switzerland to avoid trial.
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