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President Donald Trump sparked confusion when he declared President Biden’s pardons ‘void, vacant’ overnight, but legal experts say not so fast.
The 78-year-old president posted that his predecessor’s pardons for members of the January 6 committee and others were invalid because ‘they were done by autopen.’
But multiple presidents including Trump have long used autopens, and the question over whether documents signed by a president using an autopen were valid has already been examined.
‘The Bush Justice Department looked at this thoroughly and concluded that as long as the president makes the actual decision, he can delegate to secretarial staff the actual signing of the document,’ said Berkeley Law professor and former Justice Department official John Yoo.
‘I cannot see the courts rejecting this – it builds on centuries of practice and a long legal tradition of allowing agents to sign on behalf of their principals,’ Yoo added.
It’s believed that President Harry Truman was the first president to regularly use the modern autopen.
President George W Bush commissioned the Justice Department to look into the constitutionality of the use of an autopen.
In response to Trump’s claims, multiple legal experts pointed to the Bush administration opinion.
President Trump claimed that President Biden’s pardons of the January 6 committee members and others were ‘void, vacant’ because of his use of an autopen
In 2005, Deputy Assistant Attorney General Howard Nielson Jr. wrote in the memo 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.’
The legal counsel opinion noted the president could sign a bill by directing a subordinate to attach the signature including by autopen.
Despite the conclusion, Bush never used an autopen to sign legislation.
However, President Barack Obama used an autopen on numerous occasions including to sign legislation while overseas and on vacation in Hawaii.
Article I, Section 2 of the U.S. Constitution grants the president pardon power, but there is no power in the Constitution to overturn a pardon.
While legal experts point out that there is longstanding legal opinion on the matter, Trump’s claim raises questions over his future plans.
‘It’s laughable in a senes that it’s utterly absurd. No reasonable lawyer, no reasonable politician would ever say anything like this,’ said American University Department of Government professor Chris Edelson of Trump’s pardons claim.
‘But it’s dangerous because Donald Trump is operating without guardrails. He’s operating on a system that has partially collapsed,’ Edelson said.
If Trump is laying the groundwork to go after political foes on the committee regardless of legal basis, it could lead to a long and expensive battle.
‘This is an administration that has made clear they do not think that the law matters,’ Edelson said.
Trump posts unsubstantiated claims about Biden pardons that were signed with an autopen
In his post, Trump claimed without evidence that Biden did not know about the pardons and suggested others committed a crime.
It comes as the accusation against Biden has been floated by conservatives and conspiracy theorists online.
But when asked with a reporter on Air Force One while heading back to Washington whether Biden’s pardons and executive orders were ‘null and void’ Trump signaled it was not cut and dry.
‘Well I think so. It’s not my decision. That would be up to a court,’ Trump said.
‘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,’ he repeated the unsubstantiated claim.
On Monday, White House Press Secretary Karoline Leavitt somewhat backtracked Trump’s autopen claim when she argued that the president was ‘begging the question’ on whether Biden knew about the pardons.
One day before leaving office on January 19, Biden issued preemptive pardons to members of Congress who served on the select committee investigating the January 6 attack on the U.S. Capitol as well as committee staff and police who testified.
Committee member former Republican Congressman Adam Kinzinger took Trump’s pardons post as a threat.
The longtime Trump critic fired back in a social media video post on Monday: ‘Hey Trump, bring it on dude.’
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