President Trump posted this on Truth Social:
The "Pardons" that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen. In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime. Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!
Here's my tentative sense of the matter:
[1.] As I understand it, Presidential pardons need not be signed at all, see Rosemond v. Hudgins (4th Cir. 2024):
[A] writing is [not] required as part of the President's exercise of the clemency power. … The plain language of the Constitution imposes no such limit, broadly providing that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." U.S. Const. art. II, § 2, cl. 2. The constitutional text is thus silent as to any particular form the President's clemency act must take to be effective….
No party here has provided any evidence that the English monarch was confined to exercising his clemency authority in 1787 by means of a written instrument, nor have we found any. Accordingly, no known historical basis exists for restricting the Constitution's grant of that authority to require a writing.
Based on this limited but textual and historical foundation, we readily determine that nothing in the Constitution restricts the President's exercise of the clemency power to commutations that have been rendered through a documented writing…. To be sure, as a practical matter, a writing—such as the clemency warrants President Trump signed for all other pardons and commutations granted throughout his presidency—will generally be the means of proving to a third party that the act has occurred… But such a clemency warrant or, indeed, any writing, is not required for the President to exercise this authority under the Constitution.
See also the Wheat Memorandum (apparently approved by the Attorney General John Sargent in the late 1920s), on which the Fourth Circuit relies. It thus follows that a pardon's bearing an autopen signature instead of a hand signature isn't a legal problem, since no signature (and, according to the Fourth Circuit, no writing) is constitutionally required.
[2.] When it comes to autopen signatures, the 2005 Nielsen Memorandum from President George W. Bush's Office of Legal Counsel opines that autopen signatures on bills are valid, even when they are affixed outside the President's presence (though an academic article argues for a presence requirement). But that Memorandum has to do with interpreting the express constitutional provision that the President may approve a bill by signing it: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated."
That requirement that doesn't appear in the text of the Pardon Clause, which simply says the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." If no signature and even no writing is required for the pardon, then an autopen signature is even more clearly not a problem.
[3.] Of course, something is required, and that something is presumably a statement by the President that he is pardoning someone. If (and this is a very big if) a President actually didn't make such a statement, and an assistant just affixed the President's signature to a document purporting to be a pardon without the President's authorization, then I don't see how that would be a valid pardon (at least unless it's somehow ratified by the relevant President). But that turns on a factual question about whether the President was actually involved in the creation of the pardons, not on a legal question about whether an autopen signature renders the pardon invalid.
UPDATE 3/18/2025, 3:13 pm: For a contrary view, see Andrew Ingram, Dresser Drawer Pardons: Presidential Pardons as Private Acts:
[Chief Justice] Marshall's approach to presidential pardons treated them as a kind of deed—a private act of grace—and insisted that they be understood in light of the English king's pardon power. On that view of the pardons clause, could a president issue a valid oral pardon? …
English authorities offer support for the position that a pardon must be in writing. Namely, Blackstone requires that pardons be issued under the Great Seal of the United Kingdom. Hawkins also habitually speaks of pardons from the king as pardons "under the Great Seal." This implies that pardons issued by the monarch must be in writing, elsewise there would be nothing to which he or she could affix the Great Seal.
The analogy to deeds also supports a requirement that pardons be written down. Blackstone says that "a deed is a writing sealed and delivered by the parties." Deeds are "instrument[s]" executed by private parties and must be prepared in writing and signed (or sealed) in order to be effective. Making a deed is supposed to be "the most solemn and authentic act that man can possibl[y] perform, with relation to the disposal of his property." It stands to reason that if the president issues a pardon, this deed must be executed with the requisite solemnity, and, at minimum, be made in writing.
On the other hand, the Court has unequivocally held that the "pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself." Significantly, English requirements like the use of the Great Seal were not carried over into the language of the Constitution itself. The text of the Constitution's pardons clause says nothing about the Great Seal of the United States, and no authority insists that pardon documents must have the Seal. Likewise, the nonbinding regulations devised by the Department of Justice to guide the pardon process make no mention of the Great Seal or of certification by the Secretary of State. These facts leave some room to argue that oral pardons are valid. Nonetheless, while not without plausibility, this position makes the weaker side of the argument.
Faced with an oral pardon, the courts would likely hold it invalid. Whether a defendant provided video evidence, audio recording, or witness testimony, the courts would likely decline to honor it. The courts would surely be aware of the risk of perjury when witness testimony is used to prove a pardon, especially after the death of a former president. They also would not want to tempt an unscrupulous, living ex-president to perjure himself or herself about oral pardons that never occurred. With these considerations in the back of their minds, the courts would likely seize on the English authorities that imply pardons must be put down in writing, as all other deeds must be set down on paper….
The post Pardons and Autopen Signatures: A 2024 Appellate Decision Says Pardons Don't Have to Be Signed (or Even Written) at All appeared first on Reason.com.
