Late on Sunday, former President Donald Trump made the assertion that the preemptive pardons issued by President Joe Biden to the members of the House select committee, which investigated the Jan. 6, 2021, assault on the U.S. Capitol, should be considered “void” and “vacant.” The reason for this, according to Trump, was that these pardons were allegedly signed with an autopen rather than by Biden himself. However, it’s important to note that the Justice Department affirmed two decades ago that the president is permitted to use an autopen to sign legislation. Additionally, the Constitution imposes very few restrictions on the president’s power to issue pardons.
This claim by Trump was made in a post to Truth Social, a social media platform, shortly after midnight. In this post, Trump made the assertion, without providing any evidence, that Biden did not personally sign the pardons he issued to the members of the Jan. 6 select committee. This committee included staff members and officers from the Washington, D.C., Metropolitan Police Department and U.S. Capitol Police who testified before the panel.
Biden had signed the “full and unconditional pardon” for any offenses that could have arisen from the committee’s activities on Jan. 19, one day before he departed from the White House. Among the others who received preemptive pardons were Dr. Anthony Fauci, retired Gen. Mark Milley, and several members of the Biden family.
Mr. Trump’s statement regarding Biden’s pardons was that they are “hereby declared void, vacant, and of no further force of effect, because of the fact that they were done by Autopen.” He explained that the pardons were not signed by Biden and that Biden “did not know anything about them.” However, Mr. Trump did not provide any evidence or further details about the circumstances surrounding Biden’s decision to grant these pardons.
Mr. Trump warned that the members of the select committee “should fully understand that they are subject to investigation at the highest level.” A representative for President Biden did not immediately respond to a request for comment on these statements.
The pardons were issued in response to threats made by Trump on the campaign trail that he would target the House members who served on the panel if he was elected for a second term. He had previously accused both former and current lawmakers of destroying evidence and committing a “major crime” during their investigation. He even suggested in a December appearance on NBC’s “Meet the Press” that “everybody” who served on the committee “should go to jail.”
In July of the previous year, Trump had made public a social media post accusing former GOP Rep. Liz Cheney, the vice chair of the committee, of being “guilty of treason” and promoting “televised military tribunals.” The recent message shared by Trump to Truth Social implies that his administration may launch an investigation into Cheney and the others who served on the Jan. 6 committee.
The autopen, which was patented in the early 1800s and used by the likes of Thomas Jefferson, is a device designed to replicate handwritten signatures. It has been utilized by presidents to sign documents and correspondence for several decades. According to Smithsonian Magazine, Harry Truman was the first president to use an autopen, and it was frequently used by President John F. Kennedy. However, Barack Obama was the first president to use an autopen for legislation when he directed its use to sign an extension of the Patriot Act while he was in France in May 2011.
In 2005, the Bush administration had considered the legality of signing legislation with an autopen. The Justice Department’s Office of Legal Counsel concluded that the president doesn’t have to physically sign a bill for it to become law. They stated that the president could sign a bill by directing a subordinate to affix the president’s signature to it, for instance, using an autopen.
When it comes to the power to issue pardons, the Constitution grants the president exclusive authority to grant clemency, with very few restrictions. In 2024, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit found that pardons or commutations don’t necessarily have to be issued in writing. The unanimous 4th Circuit panel wrote, “We readily determine that nothing in the Constitution restricts the president’s exercise of the clemency power to commutations that have been rendered through a documented writing.”
The court clarified that while a written document could generally serve as proof to a third party that the act of pardon has occurred, it’s not necessarily required for the president to exercise this authority under the Constitution.
The 4th Circuit was considering a case involving Trump and claims made by James Rosemond, who is serving life sentences for several offenses related to his role in drug trafficking and a murder. Rosemond claimed that during a phone call in December 2020, Trump had told two of his supporters, former Cleveland Browns running back Jim Brown and his wife, that his sentence had been commuted. However, Rosemond was not among those who received written clemency warrants during Trump’s first term, and his petition was listed as “pending” after Trump left the White House in January 2021.
The judges who issued this decision were Steven Agee, who was appointed by Bush, Stephanie Thacker, who was named by Obama, and Allison Jones Rushing, who was nominated by Trump.
