President Donald Trump on Wednesday ordered the Department of Justice and White House counsel to launch an investigation into whether actions taken by former President Joe Biden are invalid, based on unfounded accusations that his aides made decisions for him.
Aside from the fact that the president directly ordering an investigation into his former political opponent would probably have been an impeachable offense until a few months ago, this investigation is, for the most part, meritless. It does not allege any laws were broken nor any constitutional provisions. It is what it looks like: a fishing expedition designed to exact revenge on Trump’s opponents and feed negative stories about Democrats to the press.
The presidential memorandum Trump issued on Wednesday claims that “former President Biden’s aides abused the power of Presidential signatures through the use of an autopen [automatic signature] to conceal Biden’s cognitive decline and assert Article II authority.”
“This conspiracy marks one of the most dangerous and concerning scandals in American history,” the memorandum states. “The American public was purposefully shielded from discovering who wielded the executive power, all while Biden’s signature was deployed across thousands of documents to effect radical policy shifts.”
It goes on to direct Attorney General Pam Bondi and White House Counsel David Warrington to investigate “whether certain individuals conspired to deceive the public about Biden’s mental state and unconstitutionally exercise the authorities and responsibilities of the President” and “the circumstances surrounding Biden’s supposed execution of numerous executive actions during his final years in office,” including executive orders, actions, proclamations, pardons and clemency grants.
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The latter investigation into Biden’s executive actions, tasked to Warrington, seeks to determine how many actions were signed by an autopen and “who directed that the President’s signature be affixed.” This is aimed at making the argument that Biden’s eleventh-hour pardons for Jan. 6 committee members and their family members, whom Trump wants to investigate; clemency grants for federal death row inmates, whom Trump wants to execute; and other presidential actions are unconstitutional and void. Trump has already stated these pardons and clemency grants are “void, vacant, and of no further effect,” on social media, despite the fact he has no authority to declare them as such.
The premise of this investigation is largely unfounded. While it has been widely reported that Biden suffered from age-related decline and that his most inner circle tried, poorly, to hide this from those inside the White House and the public, there is no existing evidence to suggest that Biden’s aides “abused the power of Presidential signatures through the use of an autopen to conceal Biden’s cognitive decline and assert Article II authority.”
This conspiracy emerged from the usual right-wing swamps with the typical misunderstanding of documents posted online. A speculative call for an investigation by Missouri Attorney General Andrew Bailey was picked up by The Heritage Foundation’s Oversight Project, which had already been compiling executive branch documents to see if Biden’s signature was identical in each one. The conservative group examined signatures for Biden’s pardons and posted online that all of the signatures looked exactly the same — as though a machine signed them.
There are at least two problems here. First, the Oversight Project largely relied on pardon documents posted to the Federal Register’s online site. At the beginning of every president’s term, the president provides a single digital copy of their signature to the National Archives, which publishes the Federal Register, that is then affixed to all digital documents bearing the president’s signature. So, it is no surprise that all of the pardons have identical signatures because all documents posted to the Federal Register have the same signature for every president in the digital era.
The second problem is less embarrassing for those claiming some kind of foul play here, but more consequential. That is that the Constitution does not state that the president must sign pardons or clemency grants or, really, anything except for bills passed by Congress.
“[H]e shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment,” the Constitution states on pardons.
For comparison, the Constitution does require the president to sign bills passed by Congress for them to become law. “If he approve he shall sign it,” the Constitution states.
But neither Trump nor right-wing groups and media are talking about bills, although that argument would likely be irrelevant anyways. (More on that later.) Trump’s memorandum focuses on “clemency grants, Executive Orders, Presidential memoranda, or other Presidential policy decisions.” It also mentions that “the White House issued over 1,200 Presidential documents [and] appointed 235 judges to the Federal bench.” There is no constitutional requirement that a president’s signature be affixed to any of these actions, let alone that that signature be drafted by the president’s own hand.
For decades, presidents have used autopens, the first of which was patented in the U.S. in 1803, to sign all manner of documents. A 1965 book examined John F. Kennedy’s use of the autopen and Lyndon Johnson showed the White House’s autopen off on the cover of The National Enquirer, acknowledging its use publicly for the first time. At the end of his term in office, President Barack Obama used the autopen to sign pardons while he vacationed in Hawaii.
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This is all perfectly legal and constitutional, according to a 1929 opinion by the solicitor general reported on by USA Today in 2017.
“Nobody but the president can exercise the power, but the power having been exercised the manner of making a record and evidence thereof is a mere detail which he can prescribe in accordance with what he deems to be the practical necessities and proprieties of the situation,” that 1929 opinion states.
As for the one line in the Constitution that directs the president to sign something — bills passed by Congress — the Justice Department’s Office of Legal Counsel issued a legal opinion in 2005, written by Howard Nielsen (whom Trump appointed to a district court judgeship), that found it is constitutional for a president to use an autopen to sign legislation, whether he was present for the signing or not, so long as he directed it to be signed. Obama became the first president to sign legislation with an autopen in 2011.
This opinion contains copious historical evidence for the use of autopen, or, as it was referred to in the past, “facsimile signature,” by presidents.
In 1969, an Office of Legal Counsel opinion written by William Rehnquist, who would later be appointed Chief Justice of the United States, “advised that the Secretary of State could sign extradition warrants for the President pursuant to ‘a letter from the President to the Secretary requesting him to affix a facsimile of the President’s signature, or to sign in his behalf, or both.’”
All that this required was “provision for notification of and approval by the President prior to the signing,” according to Rehnquist’s opinion.
“The question of whether the President should manually sign his name to a document is primarily one of propriety rather than of law, and it is within the President’s discretion to determine which documents he wishes to personally sign and those with respect to which he wishes to delegate the signing to someone else in his behalf or have his own signature written or affixed by means other than his own hand,” the Rehnquist opinion states.
The only thing that is required is that the president be the one to order a document or bill to be signed. And Biden has repeatedly endorsed and defended all of the actions he took and signed during his presidency.
“Let me be clear: I made the decisions during my presidency. I made the decisions about the pardons, executive orders, legislation, and proclamations. Any suggestion that I didn’t is ridiculous and false,” Biden said in a statement in response to Trump’s investigation.
The lack of any legal or constitutional issue here and the origins of the accusations against Biden and his aides as rooted in a half-baked, evidence-free conspiracy tell us all we need to know. This is, like so many actions taken in the second Trump administration, a pretext to launch investigations into Trump’s political foes in order to produce rage bait content for the conservative media machine and punish those Trump promised to get revenge on.
There is no law here, just simple vengeance.