The controversy surrounding former President Joe Biden’s use of an autopen to sign pardons has fueled a political and legal debate. President Donald Trump and his allies argue that these pardons are “void” because Biden did not personally sign them. However, legal experts overwhelmingly reject the claim that just the use of an autopen invalidates a pardon.
The more significant issue, and the one that could raise real constitutional concerns, is whether Biden himself authorized the pardons — or whether they were issued without his knowledge or without him having the requisite intent to grant clemency.
Autopen use: a non-issue in presidential authority
The use of an autopen is not new. Presidents Harry Truman, Gerald Ford and Barack Obama have all used autopens to sign various documents, including laws and official orders. In 2011, while abroad, Obama even used an autopen to sign an extension of the Patriot Act, which may have run afoul of the presentment clause in Article 1, though the Department of Justice’s Office of Legal Counsel has previously affirmed that a president can lawfully sign legislation with an autopen as long as he authorizes its use. The Constitution does not specify a method of signing pardons, and historical precedent supports the idea that the president likely does not have to physically pen his name.
Thus, any argument that Biden’s pardons are “void” only because they were signed with an autopen likely will not prevail. Courts would uphold these pardons based on past practices and legal opinions. But that does not end the inquiry into Biden’s pardons specifically.
The real question: Did Biden himself authorize these pardons?
The more pressing legal issue is whether Biden actually personally authorized these pardons. A presidential pardon is an act of executive clemency, which requires the president to knowingly exercise his constitutional power. If Biden did not personally and knowingly approve these pardons — or was unable to form the intent to do so — that could raise serious constitutional and legal questions.
For instance, if White House staff, the Department of Justice or other officials issued the pardons using the autopen without Biden’s explicit approval, those pardons could face legitimate legal challenges. A pardon must be a deliberate act of presidential will and that power is nondelegable. If Biden lacked awareness or comprehension of the decision or was merely informed after the fact, it could call into question whether the pardons were lawfully issued at all.
Could a court invalidate these pardons?
Historically, courts have been reluctant to second-guess presidential pardons. Once granted, they are considered final. In Ex parte Garland (1867), the Supreme Court ruled that the power to pardon is “unlimited” and not subject to congressional or judicial oversight. However, the Court has never addressed a situation where the president himself did not knowingly authorize a pardon.
If evidence emerges that Biden lacked awareness or intent when the pardons were issued, a court might face an unprecedented constitutional question: Can a pardon be invalidated if the president did not truly grant it? Unlike autopen use, this is not a settled legal issue. The answer could depend on whether a court views the president’s intent as a fundamental requirement for a valid pardon — or whether it defers to the official record stating the pardon was issued under his name.
Missouri Attorney General Andrew Bailey has already urged the DOJ to open an investigation. With Biden, there is also a legitimate reason to pursue it. His own DOJ issued a report in 2024 — well before the pardons were issued — that concluded Biden had significant memory loss and lacked the requisite mental capacity for certain legal functions.
Political and constitutional implications
The implications of such a challenge would be profound. If a court were to invalidate a pardon on the grounds that the president did not knowingly issue it, that precedent could open the door to future legal challenges against executive actions, particularly in situations where a president’s mental acuity is questioned. It would also raise concerns about the role of unelected officials executing unauthorized presidential powers.
The legal question should not be confused with the court of public opinion. While Trump and his supporters may not like Biden’s pardons, the legal question should turn on the facts and the law — not politics.
But the legal debate goes beyond politics or even Biden’s use of an autopen — it raises foundational constitutional questions about the nature of executive power, the validity of presidential acts and the legal requirements for pardons and possibly other executive orders to be considered legitimate under the Constitution. If a president’s personal intent is necessary for a valid pardon or executive action, the courts may be forced to confront an unprecedented challenge to the scope and limits of executive authority. This may ultimately be a very good thing for limited government.
Jenna Ellis is a senior adviser of public policy for the American Family Association, national radio host of “Jenna Ellis in the Morning” and a Florida resident. She previously served as a senior legal adviser to President Donald Trump.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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