Fact Check: Are President Biden’s Autopen Pardons Legally Binding?

Trump alleged that the pardons were not “approved” by Biden

Trump’s statement raises complex constitutional questions: Does an autopen undermine the legitimacy of a presidential pardon, or is it a lawful tool under executive authority?

The Constitutional and Statutory Framework

Article II, Section 2 of the U.S. Constitution provides: “The President... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This provision grants the President broad discretion but is silent on the form or method by which a pardon must be executed.

Historically, the execution of pardons has followed no statutory format, nor is there any legislation, such as the Presidential Records Act or other executive procedures, mandating a handwritten signature for a pardon to take effect. The President’s intent and authorization have always been the core legal test.

Autopen Use in Executive Practice

The autopen has been used by modern Presidents for various official acts. Most notably:

• In 2011, President Barack Obama authorized the autopen to sign a bill extending provisions of the USA PATRIOT Act while overseas. The Office of Legal Counsel (OLC) issued a legal memorandum (May 20, 2011) concluding that such use was constitutional, provided that the President “makes the decision to sign and directs that the autopen be used.”

• In 2005, President George W. Bush also employed the autopen for formal documents, though not for legislation or pardons.

The OLC opinion clarified that the Presentment Clause (Article I, Section 7) requiring the President’s signature on bills does not preclude the use of an autopen when the President expressly authorizes it. However, pardons—unlike bills—fall under Article II authority, and the courts have never squarely addressed whether this principle extends to clemency powers.

Trump asserted in his all-caps post that the pardons are void and have no effect in his estimation

Legal Controversy: Executive Power vs. Formalism

Critics argue that pardons, as deeply personal and discretionary acts, require direct involvement by the President. Some constitutional scholars suggest that autopen use could diminish the act’s solemnity and personal nature. They reference the Supreme Court’s decision in Ex parte Garland (1866), which emphasized the pardon as “the act of grace proceeding from the power entrusted with the execution of the laws.”

Proponents counter that the key issue is presidential intent, not the mechanical process. Since the autopen operates only under direct presidential authorization, it arguably satisfies the constitutional requirement. The absence of a statutory or constitutional signature requirement strengthens this position.

Who Ultimately Decides?

No federal court has ruled directly on whether an autopen-signed pardon is constitutionally defective. Should a recipient’s legal status, such as immunity from prosecution, be challenged based on the autopen’s use, the matter would likely escalate to the federal judiciary. Ultimately, the Supreme Court could be asked to resolve the issue.

Judicial deference to executive clemency powers is longstanding. In United States v. Klein (1871), the Court reaffirmed that the pardon power is exclusive to the President and may not be encumbered by Congress. However, whether an autopen fulfills the requirement for a valid “grant” of clemency under Article II would be a novel issue.

Potential Scenarios Ahead

• Judicial Review: A criminal case involving a pardon recipient could provide a vehicle for courts to assess the autopen’s validity.

• Legislative Pushback: Congress might seek to regulate the formalities of clemency through statute, though such a move would face constitutional challenges.

• Executive Clarification: The Biden Administration could seek a formal OLC opinion specific to pardons, bolstering the legal standing of the autopen in this context.

Conclusion

Trump’s assertion lacks definitive legal backing. While his argument touches on unresolved constitutional questions, existing executive practice and advisory opinions from the Department of Justice lean in favor of the autopen’s validity, provided it is used under express presidential direction.

Hunter Biden Scandal: Allegations, Controversies, and Trump's Reactions President Biden pardoned his son, Hunter Biden, after the first son was convicted in two separate federal cases earlier this year.

Biden's Historic Clemency: Counter Backlash from Pardon of Hunter Biden Biden's historic clemency for 1,500 inmates may aim to counter backlash from his controversial pardon of Hunter Biden, sparking debate over motives and fairness.

Who are the 39 People Biden Pardoned: Names, Ages, Locations, and Offenses Here are the 39 people who received pardons, with names, ages and locations provided in a White House.

Who Got Biden’s Pre-Emptive Pardons? Milley, Fauci, and Jan. 6 Figures Revealed In an unprecedented move on Monday, U.S. President Joe Biden announced pre-emptive pardons for General Mark Milley, Dr. Anthony Fauci, and members of the January ...