President Donald Trump claimed without evidence early Monday that his predecessor’s pardons for members of the House select committee that investigated the Jan. 6, 2021, attacks on the Capitol are invalid because then-President Joe Biden didn’t use a real pen.
“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,” Trump wrote on his Truth Social online platform.
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Trump went on to allege that Biden didn’t know about the pardons or approve them, and that therefore all the committee members would be “subject to investigation at the highest level.”
However, the U.S. Constitution makes clear the president has unique executive powers to issue pardons and makes no provision for subsequent presidents to rescind them — for issues relating to the choice of pen or anything else.
From left, Chairman Bennie Thompson, D-Miss., Vice Chair Liz Cheney, R-Wyo., and Rep. Adam Kinzinger, R-Ill., of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol during a hearing on Oct. 13, 2022.Drew Angerer / Getty Images file
Jeffrey Crouch, a politics professor at American University and author of the book “The Presidential Pardon Power,” said he doubted that Trump’s characterization of the pardons as “void” would have any legal effect.
“Biden’s pardons are highly unlikely to be revoked somehow because of the apparent use of an autopen,” he told NBC News.
“There are scattered examples throughout history of clemency decisions that were never completed. But the idea that a completed pardon could be revoked is a highly unusual suggestion,” Crouch added.
Biden and President Barack Obama both used an autopen device to sign official documents, a practice which is legally binding, according to 2005 guidance from the Office of Legal Counsel at the Department of Justice, commissioned by President George W. Bush.
“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,” the office said, adding that this includes the use of an autopen.
That guidance has not been challenged in court.
Obama used an autopen for dozens of pardons in 2016, Crouch said, citing a 2017 article from USA Today.
In a ruling last year involving presidential pardon powers, the 4th U.S. Circuit Court of Appeals said that presidents don’t have to issue written or signed pardons in order for them to be implemented.
“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,” the ruling said.
“To be sure, as a practical matter, a writing—such as the clemency warrants President Trump signed for all other pardons and commutations granted throughout his presidency—will generally be the means of proving to a third party that the act has occurred,” the ruling added.
The decision also cited a 1929 memo from the U.S. solicitor general about “whether records of clemency must take a particular form, including whether it must be signed by the President personally. [The solicitor general] opined that no constraints existed, pointing to the lack of any constitutional requirements on point.”
Trump’s comments on Biden’s pardons appear to have been inspired by the Oversight Project, an offshoot of the Heritage Foundation, a right-wing think tank. The group questioned on X last week whether Biden had the “mental capacity” to order an autopen to be used to add his signature.
It’s unclear if Trump was planning imminent action or an investigation against the Jan. 6 committee members.
A presidential pardon needs to be fully delivered to the recipient and the president can’t pardon crimes related to impeachment — but it is not clear what legal avenue Trump intends to pursue to undo Biden’s orders.
The White House and a representative of former President Joe Biden did not immediately respond to NBC News’ requests for comment Monday morning.
At the daily press briefing on Monday afternoon, White House press secretary Karoline Leavitt said Trump “was raising the point that, did the president even know about these pardons? Was his legal signature used without his consent or knowledge?”
Biden ordered the pre-emptive pardons in January in one of his final acts in office. Biden said he took the action to ensure that public figures who had investigated and criticized Trump while in office would not face retaliatory action under his new administration.
Biden acknowledged he was weighing such pardons in a Jan. 8 interview with USA Today, and the White House issued a statement from him after the pardons were signed that cited “exceptional circumstances” for granting them.
“I cannot in good conscience do nothing,” Biden’s statement said. “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.”
Trump has argued that the committee members are guilty of unspecified “major crimes,” writing the phrase in all capital letters in a text message to NBC News after Biden issued the pardons in January.
The panel’s members were Sen. Adam Schiff, D-Calif., who was then a House member; former Reps. Liz Cheney, R-Wyo., Adam Kinzinger, R-Ill., Elaine Luria, D-Va., and Stephanie Murphy, D-Fla.; and current Reps. Pete Aguilar, D-Calif., Zoe Lofgren, D-Calif., Jamie Raskin, D-Md., and Bennie Thompson, D-Miss.
Former Joint Chiefs of Staff Chairman Mark Milley and Dr. Anthony Fauci also received pre-emptive pardons from Biden.
“He’s more obsessed with like, me and Liz Cheney than his freaking golf score. Hey Trump, bring it on, dude,” Kinzinger said in a video posted to X on Monday morning. “You weak, whiny, tiny man.”
Schiff also addressed Trump’s comments, saying in a post to X that “the members of the Jan 6 Committee are all proud of our work.”
“Your threats will not intimidate us,” he added. “Or silence us.”
Biden was a prolific issuer of pardons in his final days in office and set a new record for presidential clemency with almost 2,500 sentences commuted, including more than 2,000 people convicted of nonviolent drug offenses.
After starting his second term, Trump pardoned some 1,500 criminal defendants charged in the Jan. 6 Capitol attack and commuted the sentences of 14 of his supporters, including members of the Proud Boys and Oath Keepers groups, who were convicted of seditious conspiracy.
Speaking to reporters on Air Force One on Sunday night, Trump claimed, “I never use” autopen.
“We may use it, as an example, to send some young person a letter. We get thousands and thousands of letters of support for young people, people who aren’t feeling well, etcetera. But to sign pardons, and all the things that he signed with an autopen? Disgraceful,” Trump said.
Megan Lebowitz and Joe Kottke contributed.
