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Legal experts say there is nothing to President Donald Trump’s claims that several of former President Joe Biden’s pardons are “VOID” because they were signed via autopen.
White House lawyers during the George W. Bush administration said the use of an autopen is perfectly legal, and constitutional scholars say that nothing in the Constitution even requires pardons to be signed anyway. And, they note, pardons cannot simply be overturned by a subsequent president.
Trump is correct that pardons would be invalid if, in fact, as he has claimed, any pardons were signed by a staffer without Biden’s knowledge or consent. But Trump has offered no evidence of that.
Trump has repeatedly invoked the autopen issue in the last several days. As NPR explains, autopen is “a generic name for a machine that duplicates signatures using real ink, making it easy for public figures to autograph everything from correspondence to merchandise in bulk. They are printer-sized machines with an arm that can hold a standard pen or pencil, and use it to replicate the programmed signature on a piece of paper below.” Trump acknowledged that he himself uses an autopen, but “only for very unimportant papers.”
In a post to Truth Social on March 17, Trump claimed that some pardons issued by Biden were “hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen.” He specifically put members of the House Select Committee to Investigate the January 6th Attack on the United States Capitol on notice that “they are subject to investigation at the highest level.”
Biden’s Late-Term Pardons
On Jan. 19, a day before he left office, Biden issued a series of preemptive pardons for members of Congress who served on the House committee investigating the Jan. 6 attack, staff of the committee and law enforcement officials who provided testimony to the committee. (Preemptive pardons are extended to people who have not been formally charged with a crime and are meant to shield them from potential prosecution.) That day, Biden also preemptively pardoned Gen. Mark Milley, Dr. Anthony Fauci and several of Biden’s family members.
Biden has used an autopen in the past, albeit rarely, according to a 2024 CNN story that said staffers flew legislation to South Korea and St. Croix to ensure Biden could personally sign the bills. We could not independently confirm whether the pardons in question were signed via autopen.
Trump has said that members of the Jan. 6 committee — including Rep. Bennie Thompson, who chaired the committee, and then-Reps. Liz Cheney and Adam Kinzinger, Republicans on the committee — illegally “destroyed evidence and deleted everything” and “they should be punished.” (As we have written, claims that the committee destroyed “all the evidence” are wrong.)
But legal scholars say there are several problems with Trump’s claim that using an autopen would nullify these pardons. For starters, they say, presidents don’t need to sign pardons for them to be official.
Article 2, Section 2, Clause 1 of the U.S. Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States.” It makes no mention of needing a signature to issue pardons, which stands in contrast to the Constitution’s requirement that a president sign a bill in order to make it a law.
“Nothing in the Constitution requires the president to sign pardons by hand,” Jeffrey Crouch, a professor at American University and author of the book “The Presidential Pardon Power,” told us via email.
A 2024 ruling in a case before the 4th U.S. Circuit Court of Appeals agreed. On the question of whether a signature is required for a president to exercise clemency, the court said, “The answer is undoubtedly no. The plain language of the Constitution imposes no such limit, broadly providing that the President ‘shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.’ … The constitutional text is thus silent as to any particular form the President’s clemency act must take to be effective.”
Moreover, Crouch said, “The practice of using an autopen to sign presidential pardons seems perfectly legitimate.”
Indeed, other presidents have used an autopen. Former President Barack Obama was believed to be the first to use it to sign legislation in 2011 when, while in France, he used an autopen to extend the Patriot Act. Then-Rep. Tom Graves, a Republican, wrote Obama a letter asking him to confirm that the bill was “presented” to him “prior to the autopen signing.” We couldn’t find that the White House responded.
A White House Legal Opinion
Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania Carey Law School, told us that the White House Office of Legal Counsel “has opined, based on the original understanding of ‘sign,’ that the president can delegate the act of signing. So autopens are fine.”
In 2005, the White House Office of Legal Counsel, at the request of then-President George W. Bush, looked into the issue. After a review of the Constitution and other legal opinions, it concluded “that the President need not personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law. Rather, the President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President’s signature to such a bill, for example by autopen.”
“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,” Howard C. Nielson Jr., deputy assistant attorney general in the Office of Legal Counsel, wrote in the legal opinion.
And that gets to the second issue Trump raised: whether Biden was aware of or had instructed a subordinate to approve the pardons.
In a press conference on March 17, White House Press Secretary Karoline Leavitt said, “The president was begging the question that I think a lot of journalists in this room should be asking about whether or not the former president of the United States who I think we can all finally agree was cognitively impaired. … But the president was raising the point that did the president [Biden] even know about these pardons? Was his legal signature used without his consent or knowledge? … 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.”
In interviews after his Truth Social post, Trump argued that Biden was “grossly incompetent” and that pardons he signed in his final days in office were “null and void because I’m sure Biden didn’t have any idea that it was taking place.” He acknowledged that ultimately, whether the pardons are illegitimate is “not my decision. That’ll be up to court.”
However, neither Trump nor Leavitt has offered any evidence that Biden did not know about or approve the pardons.
“The president can’t delegate the decision of whether to sign, or whether to grant a pardon,” Roosevelt said. “A pardon granted without the president’s knowledge is invalid. But there’s no reason to think that’s what happened here—Biden spoke publicly about the pardons.”
Biden’s Public Comments
While we could not find that Biden spoke publicly about the Jan. 19 pardons after they were issued, he did share publicly, in the days preceding the pardons, that he was considering them.
In an interview on Jan. 5, for example, USA Today’s Susan Page asked Biden, “Some of your supporters have encouraged you to issue preemptive pardons to people like Liz Cheney and Anthony Fauci, who Trump has threatened to target. Will you do that?”
“Well, a little bit of it depends on who he puts in what positions,” Biden said. He said that in a post-election conversation with Trump, “I tried to make it clear that there was no need, and it was counterintuitive for his interest to go back and try to settle scores.” But Biden said Trump did not commit to that.
And during remarks on Jan. 10, a reporter asked what pardons Biden was considering in his last 10 days in office.
“One is that it depends on some of the language and expectations that Trump broadcasts in the last couple of days here as to what he’s going to do,” Biden said. “The idea that he would punish people for not adhering to what he thinks should be policy as related to his well-being is outrageous, but there is still consideration of some folks, but no decision.”
Those comments are consistent with a Biden statement released by the White House on Jan. 20 explaining some of his 11th-hour pardons.
“Our nation relies on dedicated, selfless public servants every day. They are the lifeblood of our democracy,” Biden stated. “Yet alarmingly, public servants have been subjected to ongoing threats and intimidation for faithfully discharging their duties.
“In certain cases, some have even been threatened with criminal prosecutions, including General Mark A. Milley, Dr. Anthony S. Fauci, and the members and staff of the Select Committee to Investigate the January 6th Attack on the United States Capitol,” Biden said. “These public servants have served our nation with honor and distinction and do not deserve to be the targets of unjustified and politically motivated prosecutions.”
Members of the Jan. 6 committee acted with “integrity and a commitment to discovering the truth,” Biden said. “Rather than accept accountability, those who perpetrated the January 6th attack have taken every opportunity to undermine and intimidate those who participated in the Select Committee in an attempt to rewrite history, erase the stain of January 6th for partisan gain, and seek revenge, including by threatening criminal prosecutions.”
“Even when individuals have done nothing wrong—and in fact have done the right thing—and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputations and finances,” Biden stated, explaining that this was his reason for issuing the preemptive pardons. “The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.”
Trump can’t simply revoke pardons issued by Biden, experts told us.
“A completed pardon is not able to be revoked,” Crouch said. “If it was, then any sitting president could try to revoke pardons granted by their predecessors. A president who can undo the clemency decisions of their predecessors would weaken the clemency power for every president.”
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