President Donald Trump claimed Monday that pardons recently issued by Joe Biden to lawmakers and staff on the congressional committee that investigated the Jan. 6, 2021, Capitol riot have no force because, Trump says, the-then president signed them with an autopen instead of by his own hand.
"In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them!” Trump wrote on his social media site. Trump didn’t offer any evidence to support his claims. Nor did the White House.
Trump asserted in his all-caps post that the pardons are void and have no effect in his estimation. But presidents have broad authority to pardon or commute the sentences of whomever they please, the Constitution doesn’t specify that pardons must be in writing and autopen signatures have been used before for substantive actions by presidents.
A representative for Biden declined comment.
An autopen is a mechanical device that is used to replicate a person's authentic signature. A pen or other writing implement is held by an arm of the machine, which reproduces a signature after a writing sample has been fed to it. Presidents, including Trump, have used them for decades. Autopens aren't the same as an old-fashioned ink pad and rubber stamp or the electronic signatures used on PDF documents.
The Oversight Project at the conservative Heritage Foundation think tank recently said its analysis of thousands of pages of documents bearing Biden's signature found that most were by autopen, including pardons. Conservative media have amplified the claims, which have been picked up by Trump. He has commented for several days running about Biden's autopen use.
Mike Howell, the project's executive director, said in an interview that his team is scrutinizing Biden's pardons because that power lies only with the president under the Constitution and can't be delegated to another person or a machine. Howell said some of Biden's pardon papers also specify they were signed in Washington on days when he was elsewhere.
There is no law governing a president's use of an autopen.
A 2005 opinion from the Office of Legal Counsel at the Justice Department said an autopen can be used to sign legislation. Barack Obama became the first president to do so in May 2011 when he signed an extension of the Patriot Act. Obama was in France on official business and, with time running out before the law expired, he authorized use of the autopen to sign it into law.
Much earlier guidance on pardons was sent in 1929 from the solicitor general — the attorney who argues for the United States before the Supreme Court — to the attorney general. It says "neither the Constitution nor any statute prescribes the method by which executive clemency shall be exercised or evidenced."
Yes, but “only for very unimportant papers," he said on Monday.
He told reporters aboard Air Force One on Sunday night that, "we may use it, as an example, to send some young person a letter because it’s nice. You know, we get thousands and thousands of letters, letters of support for young people, from people that aren’t feeling well, etcetera. But to sign pardons and all of the things that he signed with an autopen is disgraceful.”
Trump remains angry at being prosecuted by the Justice Department over his actions in inspiring his supporters to go to the Capitol on Jan. 6, 2021, in an attempt to stop lawmakers from certifying Biden's defeat of him in the 2020 election, though the case was dismissed after he won reelection. At the end of his term, Biden issued "preemptive pardons" to lawmakers and committee staff to protect them from any possible retribution from Trump.
On whether pardons must be in writing or by the president's own hand, the U.S. Court of Appeals for the Fourth Circuit has said the ”plain language of the Constitution imposes no such limitation.” Biden’s statement accompanying those pardons make clear they were official acts, said Carl Tobias, professor at the University of Richmond law school.
Biden issued hundreds of commutations or pardons, including to members of his family, also because he feared possible prosecution by Trump and his allies.
Trump vigorously used such powers at the opening of his presidency, issuing one document — a proclamation — granting pardons and commutations to all 1,500-plus people charged in the insurrection at the Capitol.
Presidents also use an autopen to sign routine correspondence to constituents, like letters recognizing life milestones.
During the Gerald Ford administration, the president and first lady Betty Ford occasionally signed documents and other correspondence by hand but White House staff more often used autopen machines to reproduce their signatures on letters and photographs.
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