Fact Check: Trump Claims Biden's Autopen Pardons Are 'Terminated'

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The Claim and Its Implications

President Donald Trump has made several claims regarding former President Joe Biden's use of an autopen, a mechanical device that uses a robotic arm with an attached pen to sign documents. Trump has asserted that these pardons are invalid. He even replaced Biden’s portrait in the White House with a photo of an autopen. On December 2, Trump declared that any documents signed by the autopen during Biden’s administration are null and void.

In a post on Truth Social, Trump stated: "Any and all Documents, Proclamations, Executive Orders, Memorandums, or Contracts, signed by Order of the now infamous and unauthorized ‘AUTOPEN,’ within the Administration of Joseph R. Biden Jr., are hereby null, void, and of no further force or effect." This declaration raised questions about the legal validity of these pardons and their impact on those who received them.

Legal Expert Opinions

Legal experts have weighed in on this matter, emphasizing that the U.S. Constitution does not require presidents to directly sign pardons. Using a mechanical device for signatures is not prohibited, and there is no constitutional mechanism for overturning pardons. Bradley Moss, a Washington, D.C.-based lawyer, noted that there is no viable way for the Justice Department to revive any impacted criminal charges against pardonees.

Michael Gerhardt, a University of North Carolina law professor, added that once a pardon is issued, it cannot be undone by any president, Congress, or the courts. This highlights the significant legal challenges that would arise if Trump attempted to revoke Biden’s pardons. At a minimum, Trump would need to follow a more formal process, which would likely face strong legal challenges.

Trump’s Focus on Autopen Use

Trump’s attention to autopen use intensified in March after his allies commented on how similar Biden’s signature appeared across different official documents. This led to allegations that Biden’s pardons of lawmakers and others involved with the Jan. 6, 2021, U.S. Capitol attack were issued without his knowledge. These claims aligned with concerns about Biden’s mental and physical decline at the end of his term, when he was 82 years old, worries that forced him to quit his reelection bid.

In a June interview with The New York Times, Biden called Trump and other Republicans "liars" for suggesting he didn’t know what he was signing. He stated that he had orally granted all the pardons and commutations issued at the end of his term, adding that he worked with staff to use an autopen as a way of speeding the process because "we’re talking about a whole lot of people."

Precedent for Pardons Without a Handwritten Signature

The U.S. Constitution’s section on pardons does not mention the words "sign" or "signature," and several former presidents, including Barack Obama, John F. Kennedy, and Thomas Jefferson, are known to have used mechanized signing devices. Bernadette Meyler, a Stanford University scholar of British and American constitutional law, explained that the president possesses the power to pardon, but there is no specification that this pardon be in writing.

Dan Kobil, a Capital Law School professor, noted that presidents historically have not personally signed grants of pardons for every individual they granted clemency to, especially when granted in large batches such as mass amnesties following wars. Government memos from 1929 and 2005 also supported using an autopen. In 2005, during George W. Bush’s presidency, the Justice Department’s Office of Legal Counsel wrote a memo stating 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.

How Could Trump’s Vow Play Out Now?

Reversing pardons would require a formalized process, not a Truth Social post, according to legal experts. Federal authorities would have to rearrest people who had been convicted and pardoned, or try or retry those who hadn’t been charged or convicted. If the government did any of these things, the defendants could sue, and they would have some significant legal cards to play.

An 1869 ruling by a federal court stated: "The law undoubtedly is, that when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed act." If Trump revoked someone's pardon, that person could argue that they have been validly pardoned, and the judge could dismiss the claim then and there. The Justice Department would have to prove that Biden did not authorize the pardon.

This would be a long shot, said Frank O. Bowman III, an emeritus law professor at the University of Missouri, because Biden has said he intended to issue the pardons. "To me, that's the end of the story," Bowman said.

Historical Context

History is sprinkled with a few examples of presidents revoking their own pardons before they went into effect, Kobil said. But those about-faces were thanks to a change of heart, not because a subsequent president invalidated them.

PolitiFact Ruling

Trump claimed that any pardon signed by an autopen is now "fully and completely terminated, and is of no legal effect." However, legal experts say Trump cannot unilaterally make that happen. The Constitution doesn’t require presidents to directly sign pardons or ban using a mechanical device for signatures. There is no constitutional mechanism for overturning pardons.

Revoking a prior president’s pardons would be unprecedented, and if people’s pardons are revoked, they could challenge the revocation in court, with legal precedent on their side. We rate the statement False.