On Monday, former President Donald Trump alleged that the recent pardons issued by President Joe Biden to congressional members and staff linked to the January 6, 2021 Capitol incident are invalid. Trump’s claim revolves around the assertion that Biden used an autopen, a mechanical signature device, instead of signing the documents personally. Trump voiced his opinion on his social media platform but did not provide concrete evidence to support his allegations. The White House has also not commented on these claims.
Trump’s declaration emphasized, in capital letters, that the pardons hold no legitimacy in his opinion. However, the U.S. Constitution grants presidents extensive powers to pardon or commute sentences, and it does not mandate that such pardons be in writing or signed personally by the president. Notably, autopen signatures have been previously employed by presidents for significant actions. President Biden’s representative opted not to comment on the situation.
Autopens are machines capable of replicating authentic signatures by mimicking a person’s handwriting using a pen attached to an arm of the device. Such devices have been in use for decades, dating back to Trump’s as well as prior administrations. Unlike traditional rubber stamps or digital signatures, autopen machines provide a more legitimate replication of a person’s signature.
The controversy recently gained attention after the Heritage Foundation’s Oversight Project, a conservative think tank, reviewed many documents purportedly signed by Biden, revealing many of them were likely autopen signatures, including pardons. Fueled by conservative media coverage, Trump’s discussion of the autopen issue has intensified. Mike Howell, the executive director of the project, argued that pardon powers should not be delegated to machines, pointing out discrepancies in some pardon documents suggesting they were signed in Washington when Biden was reportedly elsewhere.
Legally, there is no explicit prohibition regarding presidential use of an autopen. A 2005 Justice Department Office of Legal Counsel opinion allowed the use of autopens to sign legislation. Former President Barack Obama was the first to use this during his term in 2011 when official duties kept him abroad as urgent legislation approached expiration. Historical legal opinion from 1929 further affirmed that there are no statutory requirements for how executive clemency should be executed or recorded.
Trump himself has acknowledged the use of autopens in his presidency but stated they were reserved “only for very unimportant papers,” citing examples like letters to young fans. His current criticism focuses on Biden’s use of autopens for pardons related to the January 6 investigations, pointing to a perceived lack of care.
Trump’s critique of Biden’s January 6 pardons is fueled by his own legal battles related to the Capitol riot, though previous attempts to prosecute him were dropped following his reelection. At the conclusion of his term, Biden’s pardons were partly designed to shield members of Congress and committee staff from potential retaliatory actions by Trump or his allies. Legal insights, such as those from Carl Tobias of the University of Richmond, suggest that the constitutional language does not demand personal signature requirements for pardons, highlighting that Biden’s pardons were officially accompanied by clear statements supporting their legitimacy.
Throughout his presidency, Biden issued numerous commutations and pardons, including to family members, as a preventive measure against possible politically motivated prosecutions by Trump. Similarly, Trump had fully exercised pardon powers at the start of his presidency, granting clemency to a vast number of individuals associated with the Capitol unrest. Presidential use of autopens extends beyond pardons, often employed for routine correspondence, celebrating personal milestones of constituents, as seen during the administrations of Gerald Ford and his wife, Betty Ford, where autopen machines were frequently used for signing letters and photographs.
