This is an adapted excerpt from the March 17 episode of “José Díaz-Balart Reports.”
Early Monday morning in a post on his social media site, President Donald Trump claimed Joe Biden’s pardons for members of the House Jan. 6 committee are invalid due to the former president’s use of an 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. In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them!
Before I was a lawyer, I was a congressional aide, so I’ve used an autopen before. It’s essentially a machine set up to mimic someone’s signature exactly. It’s often used when an office holder, or someone else, has to sign so many documents that it would be impracticable for them to do so by hand.
In 2005, the Office of Legal Counsel at the Justice Department — which basically serves as the “Mother, may I?” division of the agency — clarified a president’s use of an autopen, issuing an opinion that it was within the executive’s constitutional powers to sign a bill via an autopen, at their own direction.
“We emphasize that we are not suggesting that the President may delegate the decision to approve and sign a bill, only that, having made this decision, he may direct a subordinate to affix the President’s signature to the bill,” the opinion states.
By extension, a president should also be able to direct that a pardon be issued under an autopen. There should be no distinction between a president’s powers to sign and authorize a piece of legislation and their pardon power. I would also argue that a president’s power with respect to pardons is actually greater than their role in signing a piece of legislation. So if it’s constitutionally valid for a president to sign a piece of legislation by autopen, there should be no impediment to them doing so with a pardon.
If it’s constitutionally valid for a president to sign a piece of legislation by autopen, there should be no impediment to them doing so with a pardon.
In that same post, Trump also claimed, without evidence, that Biden “did not know anything” about these pardons. While the Constitution does not allow a president to revoke a pardon, it appears Trump may direct his Justice Department to carry out an investigation into this matter. That means if you’re one of these pardon recipients, the question now becomes: How do you prove that the then-president directed the use of an autopen to sign your pardon? The onus will fall on those who have received pardons to prove that their pardon is legitimate. That’s where this is likely headed next.
