Concerns are mounting around former President Joe Biden’s use of an autopen to sign presidential pardons and other official documents across his four years in office, though the chances of successfully challenging in court the use of an autopen on presidential pardons are ‘vanishingly low,’ constitutional scholar Jonathan Turley said.
‘Many are suggesting that the Biden pardons may now be challenged in light of the disclosures of Biden’s use of an autopen,’ Turley, a Fox News contributor, wrote on X Tuesday. ‘The chances of such challenges succeeding are vanishingly low. Presidents are allowed to use the autopen and courts will not presume a dead-hand conspiracy.’
‘Many of these were high-profile pardons, including for his own son, that Biden acknowledged publicly,’ he added. ‘There is also a problem with standing unless the issue comes up in a government effort to indict a recipient. That does not mean that the disclosures are not deeply troubling.’
Autopen signatures are ones that are automatically produced by a machine, as opposed to an authentic, handwritten signature.
President Donald Trump has been sounding the alarm on Biden’s prevalent use of an autopen for official presidential documents, most notably for official presidential pardons before he left office in January. On Monday morning, Trump posted on Truth Social that Biden’s pardons for individuals connected to the Jan. 6 select committee investigation another are ‘void.’
‘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.
‘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. 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,’ he added.
At the heart of the issue over the use of an autopen, which have been frequently used by presidential administrations across the decades, is concern over Biden’s mental acuity when he served in the White House. Trump said Sunday that though he uses the autopen for documents such as letters, he does not use an autopen for legally binding documents.
Trump’s declaration that Biden’s pardons are now ‘void’ sparked a wave of legal questions to swirl — with many legal experts reporting that this is uncharted legal territory.
‘This dog will not hunt,’ Turley added on X. ‘It may be worthy of investigation by Congress, but the pardons are unlikely to be seriously questioned by the courts.’
Michael O’Neill, the vice president of legal affairs at Landmark Legal Foundation — a conservative legal advocacy group that works to defend the Constitution — told Fox News Digital that, to his knowledge, ‘there hasn’t been a case where the limits of this power have been challenged.’
‘Biden’s pardons at the end of his term certainly test whether there are any limits to the presidential pardon power,’ O’Neill said. ‘Can a president issue blanket pardons encompassing any crime an individual may be accused of over ten years? This is a legitimate question that has yet to be addressed by the courts because no president has abused this authority until Biden. Another question is whether the pardons are valid if executed without the president’s knowledge — i.e. via autopen.’
‘If an individual who has received a pardon is indicted, they would, most likely, assert pardon as an affirmative defense,’ he added. ‘Lower courts would, most likely, uphold the dismissal, leaving it to SCOTUS to define the contours of the pardon power. How SCOTUS decides such a case is unknown.’
The Heritage Foundation’s Oversight Project first sounded the alarm on Biden’s use of an autopen earlier in March, reporting that an autopen signature was used on the vast majority of official documents researchers reviewed, except for the signature on Biden’s official announcement that he was dropping out of the presidential race in 2024.
Heritage’s Project Oversight posted a memo on its ongoing investigation into the matter Monday, reporting that researchers are wading through copious amounts of ‘public documents discharging non-delegable Presidential powers containing former President Joseph R. Biden’s signature.’
The memo determined that ‘individuals in the Biden Administration other than the President appear to have used a device called an autopen to affix the President’s signature onto some of the most controversial clemency warrants of his Presidency.’
The Project Oversight memo offered a legal explanation that ‘if President Biden’s non-delegable official actions were not his own, then they are invalid.’
‘Start with the Constitution,’ the memo reported. ‘Multiple Constitutional provisions, like the pardon power, vest those powers solely in the President. In those cases, the President affixing his signature is his execution of the acts as President.’
‘The Founding Fathers contemplated these issues when writing the Constitution. For example, Article I, Section 7, Clause 2 of the Constitution lays out the role of the President to sign or veto legislation. Early debates at the Constitutional Convention concerning this provision made it clear that regardless of the structure of the Executive Branch, the President would maintain a necessary affirmative approbation of legislation presented to him. The act of the President affixing his signature manually to a bill is his consent and is the very act that causes a bill to become law; it is in no way ministerial. Until he signs, there is no law,’ the legal explanation continued.
The Justice Department’s Office of Legal Counsel in 2005 under former President George W. Bush’s administration determined that the president is permitted to use an autopen to sign bills into law.
‘You have asked whether, having decided to approve a bill, the President may sign it, within the meaning of Article I, Section 7 of the Constitution, by directing a subordinate to affix the President’s signature to it, for example by autopen,’ the opinion stated. ‘This memorandum confirms and elaborates upon our earlier advice that the President may sign a bill in this manner.’
The Project Oversight memo, however, hit back that the opinion is ‘wrong.’
‘This opinion is wrong. But even that erroneous opinion was clear that ‘(w)e 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,’’ the memo said.
Concerns over Biden’s mental acuity when he was in the White House have been under the microscope as legal questions fly over the use of the autopen and Trump’s declaration his pardons were voided.
Biden kicked off 2024 in the driver’s seat of the Democratic Party as he keyed up a re-election effort in what was shaping up to be a rematch against Trump. In February 2024, however, Biden’s 81 years of age and mental acuity fell under public scrutiny after years of conservatives questioning the commander in chief’s mental fitness.
Scrutiny over Biden’s mental fitness rose to a fever pitch in June 2024 after the president’s first and only presidential debate against Trump. Biden missed his marks repeatedly in the debate, tripping over his responses and appearing to lose his train of thought as he squared off against Trump.
The disastrous debate performance led to an outpouring from both conservatives and traditional Democrat allies calling on the president to bow out of the race in favor of a younger generation.
Biden dropped out of the race in July, with former Vice President Kamala Harris taking up the mantle in his place, though concerns over his health have continued months later as Trump speculates that Biden was unaware of signing the pardons specifically.
White House press secretary Karoline Leavitt was peppered with questions about the autopen during Monday’s White House press briefing, saying Trump’s Truth Social was raising the question whether Biden was aware of the pardons when he signed them.
‘Was his illegal signature used without his consent or knowledge? And that’s not just the president or me raising those questions,’ Leavitt said on Monday. ‘According to the New York Post, there are Biden officials from the previous White House who raised those questions and wondered if the president was even consulted about his legally binding signature being signed onto documents.’
‘And 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,’ Leavitt continued.
Speaker Mike Johnson, R-La., also recounted earlier in January to the media that Biden reportedly didn’t remember signing an executive order freezing new liquid natural gas exports in 2024, which has increased scrutiny surrounding Biden’s mental acuity.
‘I didn’t do that,’ the former president said in 2024, Johnson recounted during an interview with the Free Press’ Bari Weiss in January.
‘Sir, you paused it, I know. I have the export terminals in my state,’ Johnson said he told the president at the time. ‘I talked to those people in my state, I’ve talked to those people this morning, this is doing massive damage to our economy, national security.’
‘I walked out of that meeting with fear and loathing because I thought, ‘We are in serious trouble — who is running the country?’’ Johnson said of the 2024 meeting.
‘Like, I don’t know who put the paper in front of him, but he didn’t know,’ he added.
Turley said Johnson’s comments on Biden suggest the ‘use of dead-hand power,’ but that legally pursing a challenge will nonetheless likely be a non-starter.
‘The account of Speaker Johnson on how Biden seemed unaware of signing a major piece of legislation does suggest the use of a dead-hand power by staffers,’ Turley wrote. ‘In the end, this is the most difficult type of allegation to pursue since the key parties will be unified in claiming full knowledge and approval by the president.’
Fox Digital reached out to Biden’s office for comment on his use of the autopen and Trump’s comments he was unaware of the pardons he signed, but did not immediately receive a reply.
Fox News Digital’s Diana Stancy contributed to this report.