Last Updated on July 23, 2025 by ThePublic
The legality of former President Joe Biden’s use of an autopen for signing preemptive pardons, with final approval reportedly given by his chief of staff Jeff Zients, hinges on constitutional and legal interpretations of the presidential pardon power and the use of automated signatures. So lets address whether this practice is illegal and whether similar situations have occurred historically, based on available public information and legal precedent.
Is the Use of Autopen for Pardons Illegal?
The use of an autopen to sign presidential pardons, even with approval delegated to a chief of staff, is not explicitly illegal under current constitutional interpretations and legal precedents. Here’s why:
- Constitutional Basis for Pardons:
- Article II, Section 2, Clause 1 of the U.S. Constitution grants the president the power to issue pardons and reprieves for offenses against the United States, except in cases of impeachment. The Constitution does not specify that pardons must be in writing or require a personal signature by the president. Legal scholars, such as Bernadette Meyler of Stanford University, have noted that pardons could theoretically be issued orally, as there is no explicit requirement for a written signature.
- Autopen Usage and Legal Precedent:
- The use of an autopen, a device that mechanically reproduces a signature, has been deemed permissible for presidential actions. A 2005 Justice Department Office of Legal Counsel (OLC) memorandum, issued during the George W. Bush administration, concluded that a president does not need to personally affix their signature to a bill for it to become law. The president can direct a subordinate to apply their signature, including via autopen, as long as the president has made the decision to approve the action. This reasoning has been extended to other presidential actions, including pardons.
- The OLC memo emphasized that the president cannot delegate the decision to grant a pardon, but they can delegate the physical act of signing once the decision is made. There is no evidence in the provided information that Biden delegated the decision-making authority itself; rather, Zients approved the use of the autopen to execute Biden’s decisions.
- Biden’s Authorization:
- According to a New York Times report, Biden made the decisions to grant the preemptive pardons during a meeting with aides on January 19, 2025, his final day in office. Emails obtained by the Times show that an aide sent a summary of the decisions to Zients’s assistant at 10:03 p.m., and Zients approved the use of the autopen for these pardons by 10:31 p.m. This suggests Biden was aware of and authorized the pardons, with Zients facilitating the execution via autopen.
- Biden himself, in an interview with the New York Times, stated that he orally granted all the pardons and commutations issued at the end of his term, asserting that he made every decision and used the autopen due to the large number of pardons involved. This counters claims that he was unaware of the pardons.
- Claims of Illegality:
- President Donald Trump and some conservative commentators, including the Heritage Foundation’s Oversight Project, have argued that the use of an autopen invalidates Biden’s pardons, particularly if Biden was unaware of the specific documents being signed. Trump has claimed, without evidence, that Biden did not know about the pardons, suggesting they were issued without his consent, which could theoretically render them invalid.
- However, legal experts, including David Super (Georgetown University), Kermit Roosevelt (University of Pennsylvania), and Jay Wexler (Boston University), have dismissed these claims as baseless. They argue that there is no constitutional requirement for a handwritten signature, and the autopen’s use is a standard administrative practice. Furthermore, there is no constitutional mechanism for a subsequent president to void a predecessor’s pardons, regardless of how they were signed.
- The 1929 Office of the Solicitor General memo and a 2024 Fourth Circuit Court of Appeals ruling further support that pardons do not need to be in writing, let alone signed by hand, to be valid. An 1869 judicial ruling also established that once a pardon is delivered, it is final and cannot be revoked.
- Delegation to Chief of Staff:
- The report that Jeff Zients gave “final approval” for the autopen’s use has raised questions about whether this constitutes an improper delegation of presidential authority. However, the available evidence suggests Zients was approving the execution method (autopen) for pardons that Biden had already decided to issue, not the pardons themselves. This aligns with the 2005 OLC memo’s distinction between delegating the decision (not allowed) and delegating the act of signing (allowed).
- Without evidence that Zients or others issued pardons without Biden’s knowledge or consent, this practice does not appear to violate constitutional requirements. Trump’s allegations that Biden was unaware lack substantiation, and Biden’s public statements and the documented meeting process contradict this claim.
- Potential Legal Challenges:
- While Trump has claimed the pardons are “void” and ordered investigations into their validity, legal experts doubt these challenges would succeed in court. The Supreme Court would likely uphold the pardons based on precedent, though some scholars note it’s “conceivable” the Court could treat preemptive pardons differently, as they are less common than traditional clemency. However, no legal precedent supports invalidating pardons due to autopen use.
- If evidence emerged that pardons were issued without Biden’s knowledge, it could raise constitutional concerns, as the pardon power is vested solely in the president. However, no such evidence has been presented, and Biden’s statements affirm his involvement.
Have Situations Like This Happened Before?
The use of autopens and delegated signature processes for presidential actions, including pardons, is not new and has occurred in prior administrations. Historical examples include:
- Historical Use of Autopen:
- Thomas Jefferson: Autopens or similar mechanical signature devices date back to the early 1800s, with Jefferson being one of the first presidents to use such a device for correspondence.
- Harry Truman: Truman is credited as the first president to use an autopen for government work, primarily for routine correspondence.
- John F. Kennedy: Kennedy frequently used an autopen for correspondence, and some sources suggest it played a role in his public image.
- Gerald Ford: Ford’s administration used autopens for routine correspondence, such as letters and photographs, though Ford and his wife sometimes signed documents by hand.
- Barack Obama: Obama was the first president known to use an autopen to sign legislation, notably an extension of the Patriot Act in 2011 while he was in France. He also used it for dozens of pardons in 2016, as well as other bills, including a tax bill in Hawaii and an emergency spending bill in Indonesia. These actions were upheld as legally valid based on the 2005 OLC memo.
- Delegated Signatures for Pardons:
- Abraham Lincoln: Lincoln’s pardons were often signed by his secretary of state or a designee, not by Lincoln himself, particularly for large batches of clemency, such as post-war amnesties. This practice was accepted and not challenged legally.
- Mass Pardons: Historically, presidents have issued large-scale pardons or amnesties (e.g., post-Civil War or Vietnam War pardons) without personally signing each document, often relying on subordinates to execute the signatures. This was noted by Dan Kobil of Capital Law School as a common practice.
- Controversies Over Autopen Use:
- The use of autopens has occasionally sparked debate, particularly when tied to significant actions like legislation or pardons. For example, Obama’s 2011 use of an autopen for the Patriot Act extension prompted Republican criticism, but the Bush administration’s 2005 OLC memo had already addressed and supported its legality.
- Trump’s own administration reportedly used autopens for non-binding documents, such as letters, though Trump claimed to sign all legally operative documents by hand. However, analysis by The Daily Mail suggested that some of Trump’s signatures on bills in the Federal Register may have been autopen-generated, as the National Archives uses a standard signature for all presidential documents.
- Preemptive Pardons:
- Preemptive pardons, like those issued by Biden for Fauci, Milley, and the January 6 committee members, are less common but not unprecedented. Examples include:
- Gerald Ford’s Pardon of Richard Nixon (1974): Ford issued a preemptive pardon to Nixon for any crimes related to Watergate before formal charges were filed. This was controversial but upheld as valid.
- Jimmy Carter’s Amnesty for Vietnam Draft Evaders (1977): Carter issued a blanket pardon for draft evaders, many of whom had not been charged, to promote national reconciliation. These were executed without individual signatures and were legally binding.
- Biden’s preemptive pardons were intended to shield individuals from potential retribution by the incoming Trump administration, a motivation similar to Ford’s pardon of Nixon.
- Prior Controversies Over Delegation:
- While no exact parallel exists for a chief of staff approving the use of an autopen for pardons, the practice of delegating the execution of signatures (not the decision) is consistent with historical norms. For instance, Lincoln’s use of designees to sign pardons and Obama’s authorization of autopens for legislation involved subordinates executing the president’s decisions.
- The controversy surrounding Biden’s pardons is amplified by political rhetoric, particularly Trump’s claims of a “conspiracy” to conceal Biden’s alleged cognitive decline. Similar accusations of improper delegation or incapacity have been raised in the past but rarely substantiated. For example, during Woodrow Wilson’s presidency, his stroke led to questions about who was exercising executive authority, though no pardons were specifically challenged on these grounds.
Analysis and Context
- Legality: The weight of legal precedent and expert opinion supports the validity of Biden’s autopen-signed pardons, as long as he authorized the decisions. The Constitution’s silence on signature requirements, combined with the 2005 OLC memo and historical practices, undermines claims of illegality. Trump’s assertion that the pardons are “void” lacks legal grounding, as no president has the authority to revoke a predecessor’s pardons, and courts have consistently upheld the finality of delivered pardons.
- Chief of Staff’s Role: Zients’s approval of the autopen’s use appears to be an administrative action to execute Biden’s decisions, not a delegation of the pardon power itself. This aligns with the 2005 OLC memo’s guidance and historical practices of subordinates handling signature logistics.
- Political Controversy: The controversy is largely driven by political narratives, particularly from Trump and conservative groups like the Heritage Foundation, who have framed the autopen use as evidence of a broader conspiracy regarding Biden’s mental capacity. These claims echo earlier criticisms of Biden’s fitness for office but lack evidence to overturn the pardons legally.
- Historical Precedent: The use of autopens and delegated signatures for pardons and other presidential actions is well-documented across multiple administrations, from Jefferson to Obama. The specific issue of a chief of staff approving autopen use is less common but consistent with the principle that the president can direct subordinates to execute signatures for authorized actions.
Conclusion
Based on current legal understanding, the use of an autopen for Biden’s preemptive pardons, with Zients approving its execution, is not illegal. The Constitution does not require a handwritten signature, and legal precedents, including the 2005 OLC memo, support the use of autopens for presidential actions as long as the president authorizes the decision. Historical examples, such as Lincoln’s use of designees, Obama’s autopen-signed legislation, and prior mass pardons, confirm that this practice is not novel. Trump’s claims that the pardons are void lack legal support and evidence, though they reflect ongoing political disputes. Unless credible evidence emerges that Biden did not authorize the pardons, they are likely to be upheld as valid.