OPINION:
On Dec. 12, President Biden granted clemency to about 1,500 people and pardoned 39 convicted of nonviolent crimes, an action the White House described as the largest single-day act of clemency in modern history.
Overall, Mr. Biden granted 4,245 acts of clemency during his four-year tenure in the White House, “far exceed[ing] the total of any other president since the beginning of the 20th century,” according to the Pew Research Center.
He commuted the sentences of 37 of 40 federal death row inmates and issued “preemptive pardons” to Dr. Anthony Fauci, the longtime director of the National Institute of Allergy and Infectious Diseases; retired Gen. Mark A. Milley, former chairman of the Joint Chiefs of Staff; and members and staff of the U.S. House committee that investigated the Jan. 6, 2021, riot at the U.S. Capitol, including former Rep. Liz Cheney.
An autopen, not Mr. Biden’s hand, signed the vast majority of those pardons. The president’s pardon power is absolute unless there is evidence that he was unaware or didn’t approve the use of the autopen, which, according to a blockbuster report from The New York Times, was exactly the case.
“Mr. Biden did not individually approve each name for the categorical pardons that applied to large numbers of people. … Rather, after extensive discussion of different possible criteria, he signed off on the standards he wanted to be used. … Rather than ask Mr. Biden to keep signing revised versions, his staff waited and then ran the final version through the autopen, which they saw as a routine procedure,” The New York Times reported Monday.
In his post-presidency, Mr. Biden granted an interview with The New York Times to defend his unprecedented use of the autopen. Yet the article produces no direct contemporaneous evidence that Mr. Biden authorized any of his ninth-hour pardons.
Constitutional scholar Jonathan Turley has said that the chances of successfully challenging in court the use of an autopen on presidential pardons are “vanishingly low” unless the White House autopen was used without Mr. Biden’s consent. This would amount to “forgery, obstruction of justice, fraud or other serious crimes.”
Terry L. Turnipseed argued in the Journal of Technology Law & Policy in 2012 that it is unconstitutional for someone or something to affix the president’s signature on a legal document without the president being physically present. He cited historical proxy signature laws requiring the principal and proxy to be together.
According to The Times’ reporting, Mr. Biden didn’t personally approve individual names to be pardoned; he consented only to the “criteria” used in making these determinations. His staff thought it was “routine procedure” to affix his name to final versions of the pardons without him even personally reviewing them, let alone being physically present.
Mr. Trump’s post on Truth Social in March seems especially clairvoyant.
“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,” Mr. Trump wrote.
“In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime,” Mr. Trump added.
The president continued in his post: “Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!”
In June, Mr. Trump instructed Attorney General Pam Bondi to investigate Mr. Biden’s use of the autopen and to determine whether it was related to the former president’s mental decline while in office. House Oversight and Government Reform Committee Chairman James Comer has also opened an investigation into Mr. Biden’s use of the autopen and a coordinated White House cover-up.
Just last week, Mr. Biden’s doctor, Kevin O’Connor, pleaded the Fifth to the House committee, citing physician-patient privilege. When asked specifically whether he was told by White House staff to lie about Mr. Biden’s health during the Biden presidency, he refused to answer. Mr. Comer’s investigation is continuing.
Notably, the only pardon Mr. Biden signed with his own hand during the last hours of his presidency was that of his disgraced son, Hunter Biden, in December. Pending further scrutiny, it’s likely the only one that will hold up in court if contested.
• Kelly Sadler is the commentary editor at The Washington Times.
