When you've lost the New York Times ...
Joe Biden wants us all to know how offended he is over suggestions that he didn't make all the decisions in his presidency. The umbrage Biden had taken turned out to be great enough for him to grant a telephone interview to the Gray Lady to refute all suggestions otherwise. But even if the Old Gray Mare ain't what she used to be, even the NYT can't quite reconcile the sheer volume of autopenned clemency actions with the idea that Biden approved all of his pardons and commutations personally and knowingly.
The NYT leads with -- and headlines -- Biden's pushback:
In an interview with The New York Times, Mr. Biden said that he had orally granted all the pardons and commutations issued at the end of his term, calling President Trump and other Republicans “liars” for claiming his aides had used an autopen to do so without his authorization.
“I made every decision,” Mr. Biden said in a phone interview on Thursday, asserting that he had his staff use an autopen replicating his signature on the clemency warrants because “we’re talking about a whole lot of people.”
Not too long ago -- say, before June 27, 2024 -- the NYT would have accepted that at face value. Biden said it, good enough for us, we have no notes -- or need of corroborating sources. Their coverage would then have focused on pouncing Republicans, childhood stutters, "cheap fakes," and how many times GOP presidents used autopens for Christmas cards.
These days, however, Biden's word as a Biden gets pretty much the value it truly always had. The NYT did some digging through e-mails that the National Archives sent to the Department of Justice as part of its probe on Biden's cognitive status and capacity to make these decisions at all. Those internal e-mails suggest that Biden got coached on these decisions, and that his aides actually made the final decisions on the clemency actions, and didn't personally sign many of them ... if any at all:
The full picture of what Mr. Biden did on pardon and clemency decisions, and how much he directed those decisions and the actions of his staff, including the use of the autopen, may come down to tens of thousands of Biden White House emails that the National Archives has turned over as part of the investigation by the Trump White House and the Justice Department. Those emails contain keywords like “clemency,” “pardon” and “commutation” from November 2024 through Jan. 20, 2025, according to people familiar with the matter, speaking on the condition of anonymity to discuss a sensitive issue.
The Times has reviewed several dozen of those emails, which discussed each of the major grants of clemency that were recorded by an autopen near the end of Mr. Biden’s term. But The Times has not seen the full extent of the emails, so it is impossible to capture the totality of information they contain or what else they might show about Mr. Biden’s involvement in the pardon and clemency decisions.
But those that were reviewed by The Times show that that the Biden White House had a process to establish that Mr. Biden had orally made decisions in meetings before the staff secretary, Stefanie Feldman, who managed use of the autopen, would have clemency records put through the signing device.
In fact, the NYT practically makes the case that the pardons and other clemency actions may be invalid:
Mr. Biden did not individually approve each name for the categorical pardons that applied to large numbers of people, he and aides confirmed. Rather, after extensive discussion of different possible criteria, he signed off on the standards he wanted to be used to determine which convicts would qualify for a reduction in sentence.
Even after Mr. Biden made that decision, one former aide said, the Bureau of Prisons kept providing additional information about specific inmates, resulting in small changes to the list. Rather than ask Mr. Biden to keep signing revised versions, his staff waited and then ran the final version through the autopen, which they saw as a routine procedure, the aide said.
And that, to quote Biden himself, is "a big f***ing deal." It is permissible to issue pardons to classes of offenders; Jimmy Carter most famously did it with draft dodgers from the Vietnam War, many of whom chose self-exile to avoid being arrested and tried. However, Carter didn't use the autopen, and Carter didn't have aides sticking individuals on the list after the conceptual decision was made, either. Carter's amnesty was very specific about a precise violation of a specific law.
The biggest legal problem this reveals is delegation. Put simply, presidents have no legal authority to delegate their clemency power; it has to be exercised personally and knowingly by presidents. Aaron Worthing has written extensively about this at Twitchy, and followed up late last night:
First, only the president can issue a federal pardon. This is a duty he cannot delegate.
Second, an autopen can be used to do any act that requires the president’s signature, but only if the president consents to his signature being placed on the document.
Third, if that consent wasn’t given, then as a matter of Constitutional law no pardon was issued.
So if Trump declares one of Biden’s pardons to be null and void for that reason, he isn’t revoking that pardon. He is saying none was issued in the first place.
Read all the way through this analysis, but Aaron and I have agreed on the key point here: agency, or consent, as Aaron puts it. Did Joe Biden really have any agency for these pardons? Did he have the capacity to give full consent to every one of these clemency actions? There has been a traditional method to establish such agency and knowing consent: presidential signatures rendered in the moment and specific to the acts.
And that's why we have come back to the autopen. Administrations of both parties have used autopens for ceremonial purposes for decades. Only in recent times have presidents used it for more official acts. George W. Bush actually asked the DoJ in 2005 whether such signatures satisfied the constitutional requirement for presidential signatures on legislation; the answer was that the agency/consent mattered most, but Bush was leery enough about the potential consequences that he decided against its use. Barack Obama used the autopen for the first time on legislation, first on the Patriot Act renewal in 2011, and later on two budget bills in 2011 and 2013.
So why is it a big deal now? No one questioned Obama's competency, agency, or clear intent to approve those acts. The use of the autopen in two of the three cases was intended to ensure that a presidential signature got affixed in time to comply with the constitutional limits as Obama was overseas in those instances. Biden wasn't overseas for any of these clemency actions, so it raises questions about consent and agency when aides processed these requests through a mechanical device rather than present Biden with the acts for his personal signature. And especially after June 27, 2024, everyone has reason to question Biden's competence and agency, especially in the last months of his presidency. Even the New York Times smells a rat.
With that said, overturning the autopen-signed clemency actions is going to be difficult. Anyone ordered back into prison or reverting back to felon status will challenge such actions, and courts will put the burden of proof on those arguing that the pardons are invalid in every individual action. The most controversial of the pardons -- those of the Biden family and Biden's top aides -- seem clearly intentional by Biden, and he defended them publicly at the time the pardons were issued.
However, we need to make sure that this doesn't arise again. The autopen should be considered invalid for anything other than the most ceremonial of presidential duties and proclamations. If a president can't affix his personal signature to any substantive action, then we should assume incapacity exists and act accordingly.
Join the conversation as a VIP Member