Trump’s claim to revoke Biden’s pardons is bunk
On Sunday, President Trump used his Truth Social platform to declare “VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT” the pardons that former President Joe Biden gave to Anthony Fauci, Gen. Mark Milley and members of the House Committee that investigated the Jan. 6 riot at the Capitol, including former Rep. Liz Cheney (R-Wyo.).
Biden issued those pardons in response to indications that Trump would use the massive powers of the Department of Justice and the FBI to prosecute perceived political enemies. In light of Trump’s post, Biden was right to be concerned.
As a practical matter, the key question posed by Trump’s post is not whether the pardons were effectively revoked. The question is whether Attorney General Pam Bondi will attempt to prosecute people whom Biden pardoned. If no indictments are issued, Trump’s post is all bluster and beside the point. If a person covered by Biden’s pardons is indicted, a motion to dismiss the indictment will undoubtedly follow, citing Biden’s pardon.
The Department of Justice will presumably argue, according to Trump’s post, that Biden’s pardons were not valid because they were allegedly “done by autopen.” “In other words,” Trump added, “Joe Biden did not sign them but, more importantly, he did not know anything about them!”
There is no evidence to back up Trump’s claim that the pardons were signed by autopen without anyone’s knowledge. Under the Supreme Court’s decision in Trump v. U.S. last summer, which declared presidents immune from criminal liability for any actions taken using official power, it is unlikely that Trump’s Justice Department could even lawfully probe this question.
Doing so would require identifying Biden officials who might have had knowledge of the pardon and calling them into a grand jury to find out whether, in fact, the pardons were signed by Biden’s own hand and what his knowledge and intent was regarding the granting of the pardons. In Trump v. U.S., the majority made clear that the pardon was a “core” presidential power and thus maximally protected from intrusion by the other branches and future prosecutors under a different presidential administration.
In addition, Chief Justice John Roberts wrote that in “dividing official from unofficial conduct, courts may not inquire into the President’s motives.” So even if there existed a shred of ambiguity over whether Biden’s pardons constituted official conduct (which there isn’t), the Trump administration would have an uphill battle probing a former president’s mindset when it comes to the exercise of the pardon power.
Moreover, there is no historical or Supreme Court precedent for “revoking” a predecessor’s pardon. Trump might argue that, like President Gerald Ford’s pardon of President Richard Nixon, the Biden pardons were anticipatory — or what some are calling “preemptive” — and therefore can be singled out for scrutiny. But there’s no basis for barring pardons for conduct that occurred in the past but has not yet given rise to an indictment. (The court has long held that pardons for future criminal behavior that hasn’t even occurred yet don’t work). Presidents George H.W. Bush, Abraham Lincoln and Jimmy Carter all issued such pardons.
Assuming that the Trump team was able to overcome these hurdles, the threshold notion that presidents cannot take official acts without attaching their personal signature to a piece of paper memorializing those acts is also undoubtedly wrong.
Article II of the Constitution sets forth the presidential pardon power. It says nothing about a pardon having to be written down on paper, let alone accompanied by a handwritten presidential signature, and no court has held that one is required. To the contrary, in Rosemond v. Hudgins, the Court of Appeals for the Fourth Circuit in 2024 held that a written document is not constitutionally required for a presidential commutation (which is a cousin of the pardon that lessens a sentence but does not forgive the crime entirely). Notably, Trump was the president who issued that commutation.
Moreover, even the far-right Supreme Court majority — despite its pro-Trump history — would be hard-pressed to call into question official presidential actions memorialized using a mechanical device, or “autopen,” in lieu of a human hand. During his first administration, Trump reportedly signed at least 25 documents by what looked like an autopen. President Barack Obama is said to have used it openly on executive orders and to sign into law the 2013 fiscal bill. No court is going to second-guess Biden’s pardons if it means opening up for scrutiny years of presidential actions that did not include personal “John Hancocks.”
Trump and his cynical team of enablers undoubtedly know this. Whether or not a pardon “revocation” or a pardon signed by “autopen” are constitutional is really beside the point. By floating the theory out there, Trump has managed to revive the discussion of Biden’s cognitive health toward the end of his presidency, diverting public debate over his own behavior and that of his administration’s legally dubious actions. It is also probably designed to send a message to Trump’s perceived enemies that nobody is safe from his wrath.
If Bondi moves forward with indictments and investigations of pardoned individuals, they will be forced defend the validity of Biden’s pardons in court just to get the criminal cases against them dismissed. The damage, in other words, will already have been done.
Kimberly Wehle is author of the book “Pardon Power: How the Pardon System Works — and Why.”
Topics
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