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Home » When is a presidential pardon not a pardon?

When is a presidential pardon not a pardon?

The New Neo Posted on by

Whenever Trump exercises executive power, causing the courts to rule on the limits of presidential power – something that has occurred with most presidents including Obama and Biden – it’s one of politics’ many bleak ironies that the very same people who shriek “Hitler!” at Trump would and did defend any power stretch of Obama’s and Biden’s. And those same people were decidedly incurious about who might be running the White House during Biden’s obvious cognitive decline.

Then it was recently revealed that the vast majority of Biden’s executive orders were signed with autopen. These were not little thank-you notes, or congratulations from the president on reaching your 100th birthday. These were important orders that are not ordinarily treated that way:

The majority of official documents signed by President Joe Biden allegedly used the same autopen signature, reinvigorating concerns over the former president’s mental acuity and if he “actually ordered the signature of relevant legal documents,” a report published by an arm of the Heritage Foundation found.

“WHOEVER CONTROLLED THE AUTOPEN CONTROLLED THE PRESIDENCY,” the Oversight Project, which is an initiative within the conservative Heritage Foundation that investigates the government to bolster transparency, posted to X on Thursday.

“We gathered every document we could find with Biden’s signature over the course of his presidency. All used the same autopen signature except for the announcement that the former President was dropping out of the race last year. Here is the autopen signature,” the group claimed on X, accompanied by photo examples.

Autopen signatures are ones that are automatically produced by a machine, as opposed to an authentic, handwritten signature. …

Republican Missouri Attorney General Andrew Bailey sent a letter to the Department of Justice on Wednesday of last week demanding an investigation be opened into whether Biden’s “cognitive decline allowed unelected staff to push through radical policy without his knowing approval.”

That article was from March 9.

Now President Trump has questioned whether Biden’s pardons are operative if it turns out he didn’t know he issued them; it’s not about autopen use per se but rather autopen use without knowledge (either lack of knowledge because of cognitive decline or – what would be an even stronger argument – lack of knowledge because the president wasn’t even informed in the first place). It’s a good question, one that (as far as I know) has never been adjudicated. Here’s the AP’s completely “objective” take [my emphasis]:

President Donald Trump accused his Democratic predecessor Joe Biden of using the mechanical device to sign pardoning documents, rather than doing so by hand. Trump claimed, without providing evidence, that Biden had no knowledge or approval of the documents.

How on earth could Trump be expected to provide ironclad evidence that proves Biden didn’t know? The evidence that was provided so far does imply it, however, if most of the documents were not signed by Biden himself. I don’t think he has a hand disability that would explain the lack of actual signature, nor has anyone in the Biden camp attempted to explain as yet.

So till then it seems reasonable to question the signatures and force the courts – preferably SCOTUS – into a decision on the merits. It may be that there is such as strong presumption that a president is in control of both his signature and his autopen that the pardons will be declared legal. But Trump’s point is well-taken and worthy of an investigation and ruling.

Comments

When is a presidential pardon not a pardon? — 52 Comments

  2. “And those same people were decidedly incurious about who might be running the White House during Biden’s obvious cognitive decline.”

    I would say decidedly anti-curious. Not only would they not see the obvious they would call you names for doing so.

  3. I like that Trump is forcing the issue. However, I assume the squish Roberts won’t let SCOTUS anywhere near a ruling on this.

  4. Even if the question of the pardons goes nowhere in the courts, Trump’s bringing up the issue highlights what a fraud the Biden presidency was.

  5. Perhaps an investigation of autopen-gate will produce (unwillingly of course), an individual(s) that will admit that they themselves (or others that they identify) signed off on documents without the authorization of “president” joke bidet.

    I guess this would void many documents that were auto-penned, but what exactly would be the crime? ……. what law is it that was actually violated??
    Impersonating a president?
    Forgery?

    Anybody know??

    Here is my guess; DOCTOR Jill Biden was the autopen-gate document signer.

  6. Otto Penn (of Scranton) was not president. This would not fly for a real estate deal. The escrow company sent a notary out to meet me in my little no stop light town to witness my signatures.

  7. Reading there are 2 auto-pens in use, and at least 1 was declared from DC while Sundowner wasn’t there.

  9. Roberts thinks the principle of the independent functioning of the President of the United States isn’t important, it’s just a tax.

  10. As BHO observed FJB will F’up anything he (or the autopen) touches. The aide who was running the country “jumped the shark.”

    Was the aide a Doctor? Doctor Who?
    Doctor Hubris?

  11. I can think of a possible hand signature disability. Parkinson’s patients often begin to produce very, very small handwriting, laboriously produced. The White House wouldn’t have admitted to that while Biden was still president, and still running for a second term, because they didn’t want to admit to any illness.

    It’s certainly worth investigating. If witnesses begin to say that direct verbal orders to sign from Biden were lacking, this may mean orders so signed are void.

  12. Adding to what Skip said. If it can be proved that Biden was somewhere else, like Delaware,
    when the pardons were “signed”, is that prima facia evidence of possible misuse? I wanted to say fraud, but didn’t

  13. So till then it seems reasonable to question the signatures and force the courts – preferably SCOTUS – into a decision on the merits.

    I’m not sure how the Supreme Court could or should weigh in on a plenary executive power like the pardon.

    This is an entirely new situation, as far as I know, I don’t know of any pardon that was later taken back by a different President, or even governor, but maybe it has happened. (I know that there has been at least one case of a President having taken back his own pardon on the ground that he would never would have granted it had he had all the facts in front of him.)

    It seems to me that this has no way to go anywhere, unless Trump chooses to have someone that Biden pardoned prosecuted for the thing he was pardoned for. Then a court could get into whether that person had a “real” pardon, one that Biden knew and approved of before the autopen.

    I suspect this is more about calling attention to the abuse of power by Biden’s staffers than any real effort to nullify pardons. As usual with things Trump, it’s not really about what it seems to be about.

  14. Niketas:

    Probably that, at the very least. There also could be legislation to add requirements such as witnesses.

  15. Maybe it was the autopen what was runnin’ the country.

    (Before anyone shouts “But that’s absurd”, keep in mind all the unicorns and Easter bunnies that was carousing around the WH grounds. Some of ‘em were even snorting’ coke; though my own personal opinion is that it was only one of them bunnies what was not properly vetted…. Gotta keep an eye on them bunnies.)

  16. It is absolutely prima facia evidence of fraud if it can be proved that Biden was somewhere else, like Delaware,
    when the pardons were “signed”. Prosecutions to the fullest extent of the law should follow. Consequence must be personal.

  17. @Geoffery Britain:It is absolutely prima facia evidence of fraud if it can be proved that Biden was somewhere else, like Delaware

    Presidents don’t have to sign things personally, necessarily. The Constitution only mentions “signing” of bills into law.

    If he directed someone to use the autopen doesn’t seem like there’d be a problem, been done going back at least to the LBJ administration.

    It’s if someone did it and he didn’t direct them, that’s the issue, and may be hard to prove. Especially if Biden were willing to say that yes he did authorize each and every one of those autopen signatures.

    This is too much like Obama’s birth certificate, “erase a Presidency you don’t like with this one weird trick”.

  18. Yes, that’s true, Niketas. The issue has already been litigated in 2005 during the George W. Bush administration. Autopens are as legal as signatures, and there is no mechanism to void a Presidestial pardon once it has been signed.

    https://www.politifact.com/factchecks/2025/mar/17/donald-trump/are-biden-pardons-void-because-he-used-an-autopen/

    Moreover, voiding Biden’s pardons would open up a future President voiding Trump’s pardons down the road. That’s not a road any Trumpists should want to explore.

  19. This is too much like Obama’s birth certificate, “erase a Presidency you don’t like with this one weird trick”.
    ==
    It’s not like that at all. The controversy over Obama’s birth certificate was driven by his refusal to consent to the publication of his long form certificate. (There was no vigorous reason to believe he’d been born anywhere but in Honolulu bar the publisher’s blurb which identified him as a native of Kenya). Even so, it was of interest only to a modest collection of hobbyists.
    ==
    I think it will come as a surprise to most of us that a pardon or any other measure biding on the public could be executed without the President’s physical signature.

  20. This is an entirely new situation, as far as I know, I don’t know of any pardon that was later taken back by a different President,
    ==
    You’ve mischaracterized what this would be. It would not be a revocation of a pardon, but an acknowledgement that no pardon was granted.

  21. Back in January, Speaker Johnson recounted in an interview that he finally secured a meeting in early 2024 with Biden alone to ask him why Biden paused LNG exports. Biden insisted he had not done so. The Speaker thought Biden was not remembering that he signed the order because of Biden’s cognitive decline.

    But what if Biden spoke the truth — he didn’t remember because he hadn’t signed the order (or gave authorization to have it signed). Instead, one of his staff created the order pausing LNG exports and signed it using the auto-pen.

  22. @Art Deco:It would not be a revocation of a pardon, but an acknowledgement that no pardon was granted.

    I don’t disagree with your correction, but however you call it, I don’t believe it ever happened before, when a later President “acknowledged” that an earlier President’s pardon was never granted, and I don’t think anyone knows what do with that, except perhaps if someone pardoned by Biden is prosecuted for something Biden pardoned him for.

  23. neo, regarding your comments above, the Constitution does not permit Congress (by legislation or otherwise) to impose limits or parameters on the presidential pardon power. As Prof. Volokh explains today, case law indicates that pardons need not be in writing at all–there is nothing in the common law that requires it–so they certainly need not be signed by hand.

  24. It’s now being speculated that Biden aide Neera Tanden was the wielder of the autopen. Her name seemed familiar to me, and I realized she was the failed nomination for head of OMB under Biden, whose nomination tanked after Manchin withdrew his vote. She also brazenly deleted more than 1000 tweets, under the impression people wouldn’t find out? If so, this business with the autopen is similar.

    https://www.politico.com/news/2021/02/09/neera-tanden-confirmation-remarks-467833

  25. Tanden went from UCLA to Yale Law School to 28 years of employment in the nexus which surrounds the Democratic Party. She lost the OMB nomination because she made public statements indicating she loathes anyone who might stand in her way, among them…Susan Collins. Such a person should have no influence over anything.

  26. . . . and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

    What offences were pardoned? Oh, there weren’t any, no particular charges? No particular cases brought? So no particular offenses to pardon or reprieve?

    Huh. Just a wave of the hand against possibilities or potentialities? Funny, it doesn’t say anything about potentialities or possibilities. Just “offences against the United States”. Weird.

  27. Blanket pardons for unspecified acts were common in English practice. The courts have generally construed the Constitutional pardon power as coextensive with the English royal power.

    Trump’s pardon of the J6 offenders was notably vague. It certainly didn’t say that it covered drug offenses uncovered in searches during investigations, but the Justice Department and the courts have generally interpreted it that way.

  28. Even assuming that there was a mechanism to invalidate a presidential signature for lack of consent by the president, you need evidence. Short of Biden claiming that he didn’t authorize a signature, it is almost inconceivable that you would find sufficient evidence to prove that any signature was not authorized. Otherwise, you have a “he said, she said” between Biden and/or aides. That’s not going to be enough to prove that a signature was unauthorized.

    Trump is trolling.

  29. I do remember some of us agreeing with the notion that Trump could mentally declassify any document without anything announced or put in writing. I don’t say those people are wrong, but they should be consistent.

    I agree in principle that if Biden didn’t know these pardons were being signed and he wouldn’t have signed them if he knew about them, they would not be “real” pardons, but what I don’t see is any practical way to act on this. Short of some kind of smoking gun memo or video or some such, or some kind of vehement denial by Biden that he had anything to do with these.

    But it seems the cure would be worse than the disease, if anybody pardoned can be prosecuted with the government or a court getting a chance to say it wasn’t a “real” pardon.

  30. I like the theory that the real plan is to keep the autopen story, the pardons and Biden’s mental decline in the news.

  31. I do remember some of us agreeing with the notion that Trump could mentally declassify any document without anything announced or put in writing. I don’t say those people are wrong, but they should be consistent.
    ==
    The question at hand was whether the President was so hog-tied by the Archvist’s preferred procedure that he could be subject to criminal prosecution for having the documents in his possession (a liability that somehow did not extend to Mike Pence or Joe Bribem).
    ==
    In this case, the question is whether the pardon can be said to exist as anything but a draft absent the president’s actual signature.

  32. huxley – It’s one of two possibilities. Trump is either trolling to keep Biden and the autopen in the news, or he really does operate on the intellectual level of an adolescent.

    One problem with Trump – it’s usually one or other other. He’s either playing 10-dimensional chess, or he’s really that un-serious.

  34. As I recall, Trump extended SS protection to his adult children for some period of time after the end of his Presidency, by Executive Order. Is that what Biden did?

  35. It’s one of two possibilities. Trump is either trolling to keep Biden and the autopen in the news, or he really does operate on the intellectual level of an adolescent.

    Bauxite:

    Frankly, I read the second half of your comment as on par with the intellectual level of an adolescent.

    Given Trump’s astonishing comeback in the face of concerted, malicious, powerful attacks over the past ten years, I think we are well past debating Trump’s intellectual level in such demeaning terms.

  37. Didn’t Biden issue thousands of pardons/clemencies? Not unreasonable to use an autopen. But since we now know his faculties have been declining for years, since even before he ran, it is also reasonable to ask whether he really ordered them.

    It ends up being just a small subset of the fraud on the American people called the “Biden” Administration.

  38. Didn’t Biden issue thousands of pardons/clemencies? Not unreasonable to use an autopen.
    ==
    Yes unreasonable. If the president cannot devote enough time to physically sign the document, we ought to make provisions in law for the franchise to issue pardons to be delegated to a designated provost in each federal trial jurisdiction, perhaps a state governor.
    ==
    While we’re at it, kinda peculiar to have the Department of Justice screening applications for a pardon; the Department of Justice was the apparat which prosecuted them. Better to have an office at the White House screen pardon applications and better to have it leavened with those who are not lawyers. Also, the purpose of executive clemency (pardons, commutations, reprieves) should be to correct dubious decisions by courts. Making them contingent on things like ‘expressions of remorse’ is twee. Issuing pardons to people who haven’t been convicted should be limited to putting a stop to scamming around by prosecutors and their handmaiden judges.

  39. Our trolls aren’t what they used to be.

    Something from Yeates comes to mind ….

    ” ….
    the center can not hold …..”

  40. “I think it will come as a surprise to most of us that a pardon or any other measure biding on the public could be executed without the President’s physical signature.”

    Hold on a sec.
    Isn’t the issue here LESS the autopen and MORE whether Decent Joe was physically present—IOW, in the room—WHEN the pardon was signed…(though one could also add whether he was compos mentis, which may well be the crux of the issue).

    So that that the quote above might be tweaked to:
    “I think it will come as a surprise to most of us that a pardon or any other measure biding on the public could be executed without the President’s physical presence in the room while the pardon (or other measure) was signed.”

    Or, to stress the compos mentis angle:
    “I think it will come as a surprise to most of us that a pardon or any other measure biding on the public could be executed without the President’s mental presence in the room while the pardon (or other measure) was signed.”

    (Heck, why not “PHYSICAL AND MENTAL PRESENCE”?….except that we know PRECISELY why.)

    File under: Being Where

  41. I feel that going so broad here was a mistake. There is solid arguments that Biden did not know a vast amount of what “his” government did, including pardons, but Presidential Pardons are a third rail because of how previously untested and honored they have been. Either side deciding to touch or limit them would create a likely blowback effect, including here. But Trump decided to challenge them.

    The big issue I see is that autopen use IS legitimate, and has been proven legitimate in court challenges even before the Supremes. Because as others pointed out, there are legitimate reasons for its use. The test then would be knowledge the President knew and consented (and was in a good position to know and consent) to its use and his signature in a given case, EVEN IF he was not physically present. Or rather in this case one side or the other being able to prove beyond reasonable doubt that the President DIDN’T know and consent to a given case.

    That’s going to be obscenely hard to prove, but is sounder grounds for a challenge. Issue is how one could prove such a thing.

    IIRC A good number of the Jan 6 Pardons were done by Autopen, which also highlights the problem with this attack. Now, Trump is far more indisputably of sound mind and in control of his faculties and administration, so it would or at least should be easier to defeat challenges on that front, but I think it still points to the weakness and fundamental risk of going on the autopen specifically.

  42. Huxley – With this autopen stunt, Trump is taking a hugely divisive and precedent-shattering position on an issue that he is almost certainly going to lose.

    You can take all the umbrage you want at the suggestion, but do you see another possibility? He either thinks he’s going to win, in which case he’s an idiot, or he’s deliberately misleading his base to nurse their grievances.

    FWIW, I think it’s the latter, but neither possibility is particularly flattering to Trump.

    And about his election victories – Trump is astoundingly fortunate in his enemies. If the opposition never changes its tactics, sometimes a one-trick pony can be much more successful than one would expect.

  43. @Bauxite:He either thinks he’s going to win, in which case he’s an idiot, or he’s deliberately misleading his base to nurse their grievances.

    Those are not the only two possibilities. And what you think he’s trying to “win” may not be what he is really trying to “win”. (You might familiarize yourself with the concept of “earned media”.) And it might be wise to be a little humble in predicting yeat again another Trump failure, when so many of us here (I include myself) have prophesied in vain.

    I don’t think it’s obvious at all that he really want those pardons to somehow be made void. I think it’s much more likely he wants them talked about, and he wants it to come out how many and which decisions of Biden’s were not made by Biden at all.

    It’s also possible he wants the Dems and the media to go way overboard in defending the pardons, including the scuzziest ones. He has tricked the Dems into loudly and fiercely defending the fringe position on any number of issues this year.

  44. @Art Deco:In this case, the question is whether the pardon can be said to exist as anything but a draft absent the president’s actual signature.

    That’s no question at all. The Constitution does not require a signature, or even that a pardon be written down. If there’s some law requiring the President’s personal signature, it could be quoted.

    While we’re at it, kinda peculiar to have the Department of Justice screening applications for a pardon

    It’s been the process for decades. See here.

    …The executive clemency process is intended to be accessible to ALL eligible applicants, whether they have a lawyer or not, and is begun by filing the appropriate clemency petition. In fact, most people who submit clemency applications do not have a lawyer helping them. Application forms are available on this website. If you have questions about the application as you are completing it or helping someone else to complete it, you may contact the Pardon Attorney at USPardon.Attorney@usdoj.gov to ask for clarification. Please be aware that we are unable to provide legal advice. If a pardon applicant submits an application that is incomplete or does not sufficiently answer the questions posed, the Pardon Attorney will contact the applicant and explain what additional information is required….

    The President is the only one with authority to use the clemency power according to Article II, section 2, of the Constitution. From 1789-1853, the Secretary of State and the Attorney General shared the responsibility of helping the President exercise his power. From 1853-70, the Attorney General was given the administrative responsibility to review pardon applications, although the Department of State continued to issue pardon warrants until a presidential order of June 6, 1893, transferred this function to the Department of Justice. On March 3, 1865, the Attorney General delegated clemency responsibilities to the Office of the Clerk of Pardons (13 Stat. 516). The Office of the Clerk of Pardons became a component of the newly created Department of Justice, pursuant to its enabling act, on June 22, 1870 (16 Stat. 162). It was superseded by the Office of the Attorney in Charge of Pardons, established in the Department of Justice by an act of March 3, 1891 (26 Stat. 946), and re-designated the Office of the Pardon Attorney in 1894. SEE 204.1.

  45. Huxley –

    “I don’t think it’s obvious at all that he really want those pardons to somehow be made void. I think it’s much more likely he wants them talked about, and he wants it to come out how many and which decisions of Biden’s were not made by Biden at all.

    It’s also possible he wants the Dems and the media to go way overboard in defending the pardons, including the scuzziest ones. He has tricked the Dems into loudly and fiercely defending the fringe position on any number of issues this year.”

    Yes, I think that’s what he’s (most likely) doing. That’s also deliberately misleading his base in order to nurse their grievances. He’s peddling utter nonsense and you can’t justify that by saying, basically, “who knows, it might be true.”

    The utter nonsense is that anything signed with an autopen during the Biden administration will be invalidated. It won’t, unless Biden himself claims that he didn’t authorize a signature or a solid majority of his staff admit that he didn’t authorize a particular signature. The chances of either of those things happening are slim and none. Even if they did, there would still be significant hurdles to invalidating anything.

    This is the mirror image of the same TDS ailment that afflicts Trump’s pursuers. Just because the bad man did a bad thing doesn’t mean that there’s a blessed thing you can do about it now, at least directly.

    In this case, yes, I have my doubts about whether Biden was completely aware of each and every autopen signature made during his term. But no, there is no way whatsoever to do anything about it now. Pretending otherwise, or suggesting otherwise to your supporters, is pure demagoguery.

  46. Niketas Choniates – It seems to me that there are two different, but related, issues: (i) is the autopen signature on the pardons valid? and (ii) could the pardons have been made without a signature?

    It seems to me that both issues turn on what Biden authorized. If he authorized the autopen signature, then he authorized the pardon, matter over. It’s difficult to come up with a plausible scenario where Biden did not authorize the autopen signature, but did otherwise authorize a pardon. So I think the authorization of the autopen signature is 99% of your ballgame.

    FWIW – I think the most plausible theory for at least most of the autopen use is that they were afraid that hand signatures would reveal that Biden was suffering from Parkinson’s or another related ailment.

  47. The big issue I see is that autopen use IS legitimate, and has been proven legitimate in court challenges even before the Supremes. Because as others pointed out, there are legitimate reasons for its use.
    ==
    No, there are no legitimate reasons for its use. I’m actually surprised they’ve been used for anything but form letters. Dismantle them.
    ==
    There was a controversy some years ago about form letters sent by Donald Rumsfeld’s office to the families of soldiers who died in action, complete with autopen signoff. It was a legitimate complaint. Any such letter should have been sent under a real signature; during Rumsfeld’s tenure, there were a mean of about two American soldiers killed in action per work day, so it wasn’t going to break his back to sign them himself. During the VietNam War, the task could have been delegated to the major generals under whom the soldiers and Marines were serving.

  48. We all understand that the use of the President’s autopen with the President’s knowledge and consent is a totally different issue from the use of the President’s autopen without the President’s knowledge and consent, right?

    We all realize it’s very convenient for the legacy media to focus on the autopen, and not on the knowledge and consent of President Biden, right?

    I think a lot of journalists in this room should be asking about whether or not not the former President of the United States — who I think we can all finally agree was cognitively impaired — I know it took people some time to finally admit that but, we all know that to be true, as evidenced by his disastrous debate performance against President Trump during the campaign — I digress on that — but the President was raising the point that: Did the President even know about these pardons? Was his legal signature used without his consent or knowledge?
    And that’s not just the president or me raising those questions, Kaitlan. According to the New York Post, there are Biden officials from the previous White House who raised those questions and wondered if the President was even consulted about his legally binding signature being signed onto documents. And so I think it’s a question that everybody in this room should be looking into, because certainly that would propose perhaps criminal or illegal behavior if staff members were signing the President of the United States’ autograph without his consent.

  51. @ Niketas > “The Constitution does not require a signature, or even that a pardon be written down.”
    BUT if the pardon IS written down, and there IS a signature purporting to be the President’s ON the document, then it better be his, or done at his explicit request, in which case there ought to be someone able to say without perjury that “He told me to do it.”

    @ Bauxite > “I think the most plausible theory for at least most of the autopen use is that they were afraid that hand signatures would reveal that Biden was suffering from Parkinson’s or another related ailment.”

    I’m leaning that way myself for many of the documents, although by the time the pardons were signed no one would be surprised at a physical disability.
    On the other hand, if he was unable to sign because of a mental disability with physical symptoms, that lends weight to Trump’s accusations

  52. IIRC A good number of the Jan 6 Pardons were done by Autopen
    ==
    Would he need to do that if he signed a proclamation with the 1,500 names listed on it?

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