Washington — President Trump claimed late Sunday that preemptive pardons former President Joe Biden granted to members of the House select committee that investigated the Jan. 6, 2021, assault on the U.S. Capitol are “void” and “vacant” because they were allegedly signed with an autopen.
However, the Justice Department two decades ago said the president can use an autopen to sign legislation, and the Constitution imposes few limits on the president’s pardon power.
In a post to Truth Social shared just after midnight, Mr. Trump claimed without evidence that Biden himself did not sign the pardons he issued to the members of the Jan. 6 select committee, staff members, and officers from the Washington, D.C., Metropolitan Police Department and U.S. Capitol Police who testified before the panel.
Biden signed the “full and unconditional pardon” for any offenses arising from the committee’s activities on Jan. 19, one day before he left the White House. Others who received preemptive pardons were Dr. Anthony Fauci, retired Gen. Mark Milley and several Biden family members.
What did Trump say about Biden’s pardons?
Mr. Trump claimed that the pardons his predecessor issued to the select committee members are “hereby declared void, vacant, and of no further force of effect, because of the fact that they were done by Autopen.” The president wrote that Biden did not sign the pardons and “did not know anything about them,” though Mr. Trump did not provide evidence about the circumstances surrounding Biden’s clemency decision.
He said the select committee members “should fully understand that they are subject to investigation at the highest level.”
A representative for Biden did not immediately return a request for comment.
The pardons were issued to the House members who served on the panel in response to Mr. Trump’s threats on the campaign trail that he would target them if elected to a second term. He had accused the former and current lawmakers of destroying evidence and committing a “major crime” during their probe, and told NBC’s “Meet the Press” in December that “everybody” who served on the committee “should go to jail.”
Last July, Mr. Trump circulated a social media post accusing former GOP Rep. Liz Cheney, the committee’s vice chair, of being “guilty of treason” and promoting “televised military tribunals.”
The president’s latest message shared to Truth Social suggests that his administration may investigate Cheney and the others who served alongside her on the Jan. 6 committee.
What is an autopen signature?
Patented in the early 1800s and used by Thomas Jefferson, the autopen is a device used to replicate handwritten signatures.
Presidents have signed documents and correspondence using an autopen for decades. According to Smithsonian Magazine, Harry Truman was the first president to use autopen, and it was said to have been used frequently by President John F. Kennedy. But Barack Obama became the first president to use an autopen for legislation when he directed it to be used to sign an extension of the Patriot Act while in France in May 2011.
President George W. Bush’s administration weighed in on the legality of signing legislation with an autopen in 2005, when the Justice Department’s Office of Legal Counsel 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,” then-Deputy Assistant Attorney General Howard Nielson, Jr., wrote in an opinion for the White House counsel.
As to the pardon power, the Constitution gives the president the exclusive authority to grant clemency, with few limits. And in 2024, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit found that pardons or commutations do not have to be issued in writing.
“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 unanimous 4th Circuit panel wrote.
While the court found that a writing “will generally be the means of proving to a third party that the act has occurred,” it noted that “a clemency warrant or, indeed, any writing, is not required for the president to exercise this authority under the Constitution.”
The case before the 4th Circuit also involved Mr. Trump and claims raised by James Rosemond, who is serving life sentences for numerous offenses arising from his role in drug trafficking and a murder. Rosemond claimed that Mr. Trump told two supporters, former Cleveland Browns running back Jim Brown and his wife, during a telephone call in December 2020 that his sentence had been commuted.
But Rosemond was not among those who received written clemency warrants during Mr. Trump’s first term, and his petition was listed after the president left the White House in January 2021 as “pending.”
The judges who issued the decision are Steven Agee, appointed by Bush, Stephanie Thacker, named by Obama, and Allison Jones Rushing, nominated by Mr. Trump.
