In Trump's Revenge Fantasy, Biden Did Not Actually Pardon Members of the January 6 Committee
The president says those legislators are "subject to investigation at the highest level," notwithstanding their pardons and the Speech or Debate Clause.
On his way out the door in January, then-President Joe Biden preemptively pardoned five of his own relatives, along with several former federal officials and the members of the House select committee that investigated the 2021 riot at the U.S. Capitol. Or did he?
According to President Donald Trump, those pardons did not really happen. "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 Truth Social late Sunday night. "In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them!"
Contrary to what Trump seems to think, presidents have no authority to override their predecessors' acts of clemency, and the use of an autopen does not render presidential pardons invalid. In other words, Trump's social media rant cannot undo what Biden did, allowing the criminal investigations that the pardons were aimed at blocking. But it does suggest that Trump, despite his intermittent attempts to assure us that he won't use his presidential powers to punish his political opponents in the guise of criminal justice, would like very much to do exactly that.
Biden's nakedly self-interested pardons, which he said were necessary to protect his relatives and allies from legally baseless, politically motivated investigations by the incoming Trump administration, lent credence to vague claims that the pardon recipients had committed crimes. They also set a dangerous precedent by inviting future presidents to shield their underlings from accountability for breaking the law. They nevertheless fell within Biden's broad constitutional authority to "grant reprieves and pardons for offences against the United States, except in cases of impeachment."
Is Trump right that pardons are valid only if they carry the president's manual signature? Not according to the Constitution, which imposes no such requirement.
"Absent a constitutional constraint, the President's ability to commute a sentence is not subject to any further formal limits or requirements," the U.S. Court of Appeals for the 4th Circuit noted last year in Rosemond v. Hudgins, which involved a prisoner who claimed that Trump's remarks during a telephone call qualified as a commutation. That principle, the appeals court said, "resolves the matter of whether a writing is required as part of the President's exercise of the clemency power. The answer is undoubtedly no."
If "a writing" is not required to make a pardon valid, it follows that a manual signature is not required either. The whole debate about exactly which documents Biden may have signed with an autopen is therefore beside the point.
When a president signs legislation, the process is much more constrained than when he grants clemency, since it involves another branch of government and a constitutionally specified procedure. But even in this context, the Justice Department's Office of Legal Counsel advised in 2002, a manual signature is not required.
"The Constitution provides that a 'Bill' that has passed both Houses of Congress becomes law when the President, having 'approved,' 'shall sign it,'" Principal Deputy Attorney General M. Edward Whelan III noted in a two-page memo to Alberto Gonzales, George W. Bush's second attorney general. "You have asked whether the President will have 'sign[ed]' H.J. Res. 174 when a White House aide, acting at the President's specific direction, affixes the President's signature to H.J. Res. 174. For the reasons that we briefly outline here, we conclude that the answer is yes."
Just as the requirement that the president indicate his disapproval of a bill by "return[ing] it" to "that House in which it shall have originated" does not mean he has to "personally deliver the rejected bill to Congress," Whelan wrote, "we do not believe that the requirement that the president 'sign' a bill in order to manifest his approval of it requires that he personally put pen to paper." Rather, Whelan said, "the word 'sign' is expansive enough to include the meaning of 'cause the bill to bear the President's signature.'"
Three years later, the Office of Legal Counsel reaffirmed that position in a 30-page memo based on a much more detailed analysis. "We conclude that 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," Deputy Assistant Attorney General Howard C. Nielson Jr. wrote. "Rather, the President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President's signature to such a bill, for example by autopen."
After Trump's post about Biden's pardons, a reporter asked him whether he thought the use of an autopen would invalidate other presidential actions by Biden. "It's not my decision," Trump replied. "That would be up to a court. But I would say that they're null and void, because I'm sure that Biden didn't have any idea that it was taking place."
Trump thus seemed to retreat from the claim that he could unilaterally and retroactively "declare" that Biden's decisions are "VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT." And as in his Truth Social post, he conflated the use of an autopen with the question of whether Biden actually approved the pardons.
"The necessary Pardoning Documents were not explained to, or approved by, Biden," Trump averred on Truth Social. "He knew nothing about them, and the people that did may have committed a crime."
By January 20, according to Trump, Biden was a doddering old man who was so out of it that he did not even understand what was being done in his name. If so, the autopen is a red herring, since Biden's underlings could have simply presented the pardons to him and told him to sign them. But by the same logic, Biden's cognitive decline would cast doubt on the validity of pretty much everything he ostensibly did toward the end of his term.
If Biden was not responsible for the pardons, who was? Trump thinks the members of the January 6 committee "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!"
Trump wants to have it both ways. Biden was "crooked," which implies deliberate misconduct. But he also was so senile that he had no idea what was going on, which absolves him of responsibility for the pardons and, presumably, many of the other things that made him "the Worst President in the History of our Country."
The idea that the pardons were instigated by the legislators who investigated the Capitol riot is inconsistent with their publicly voiced concerns about the implications of the clemency that Biden ultimately granted. "As soon as you take a pardon, it looks like you are guilty of something," former Rep. Adam Kinzinger (R–Ill.) noted two weeks before the pardons. "I am guilty of nothing besides bringing the truth to the American people and, in the process, embarrassing Donald Trump, because, for 187 minutes [during the riot], he sat there and did absolutely nothing and showed how weak and scared he truly was. So, no, I don't want it."
Rep. Adam Schiff (D–Calif.), now a senator, took a similar position. "I've been very public about my point of view, which is that it would be the wrong precedent to set," he said. "I don't want to see each president hereafter on their way out the door giving a broad category of pardons to members of their administration….We're all enormously proud of the work that we did. We stand by it. We feel we have the protection of the Speech [or] Debate Cause. My own feeling is, let's just avoid this kind of broad precedent….I'm urging that [Biden] not go down that road."
Meanwhile, according to Trump, Schiff et al. were working behind the scenes to arrange the pardons they claimed they did not want—pardons that Biden was not otherwise inclined to grant and did not even realize he had granted. And the upshot, Trump says, is that the committee members "should fully understand that they are subject to investigation at the highest level."
Investigation for what, exactly? Trump reiterated his demonstrably false claim that the committee members "destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me." Even less plausibly, he has claimed the legislators are guilty of "treason," which is punishable by death or by a prison sentence of at least five years. A person commits that crime when he "ow[es] allegiance to the United States" and "levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere."
As Kinzinger suggested, Trump's real beef with him and his former colleagues is the detailed evidence they presented of his complicity in the assault on the Capitol, which he provoked with his stolen-election fantasy and allowed to play out for hours before intervening. But as Schiff noted, that work is protected from "investigation at the highest level" by the Constitution, which says members of Congress "shall not be questioned in any other Place" for "any Speech or Debate in either House."
The current and former legislators whom Trump wants to investigate do not seem to be quaking in their boots. "I am not afraid of Trump's latest midnight rant that has no basis in reality," Rep. Bennie Thompson (D–Miss.), who chaired the January 6 committee, told Axios. When a Trump supporter taunted Kinzinger on X, saying "your pardon is invalid" and "you're going to jail cuck boy," the former congressman replied: "Please! You guys have been threatening this forever! Bring it on, it's getting boring waiting."
Trump's renewed interest in prosecuting Thompson et al. for nonexistent crimes contradicts what he was saying last December. In a Meet the Press interview, Kristen Welker asked Trump if he expected Kash Patel, his nominee for FBI director, to "launch investigations" of the many "deep state" actors that Patel named as enemies of democracy and the Constitution in his 2023 book Government Gangsters.
Patel's enemies list included 60 former executive branch officials, ranging from Democrats such as Biden and Hillary Clinton to Trump appointees such as former Attorney General Bill Barr and former White House Counsel Pat Cipollone. The list was "not exhaustive," Patel noted. "It does not, for example, include other corrupt actors of the first order such as Congressmen Adam Schiff and Eric Swalwell." Nor did it include "the fake news media," which Patel also portrayed as part of the "deep state" conspiracy.
Welker asked Trump if he would "direct" Patel to investigate those alleged criminals. "No," Trump replied. "Not at all. Not at all." Trump said Patel, whom he described as "very fair," is "going to do what he thinks is right."
Patel, for his part, insisted during his confirmation hearing that he was not interested in "retributive actions," despite his promise to "go out and find the conspirators," including journalists as well as public officials. "I have no interest, no desire, and will not, if confirmed, go backwards," Patel told the Senate Judiciary Committee. "There will be no politicization at the FBI. There will be no retributive actions taken by any FBI, should I be confirmed as the FBI director….The only thing that will matter if I'm confirmed as a director of the FBI is a de-weaponized, de-politicized system of law enforcement completely devoted to rigorous obedience to the Constitution and a singular standard of justice."
Trump nevertheless insists that his enemies, notwithstanding their pardons and the Speech or Debate Clause, "are subject to investigation at the highest level." He not only cannot let go of his many grudges; he cannot stop talking about them, even when there is no realistic way to act on them.
