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There’s a growing movement by Republicans to void some of the pardons issued by President Joe Biden.
It would be an unprecedented maneuver of political retribution, and something for which there is no basis in the Constitution or existing law.
The power to pardon is set up for the president as one of the few unchecked powers in American government.
It takes up less than a sentence in the Constitution — “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
It doesn’t say anything about an autopen or even require that a president physically sign off on a pardon, much less pass a competency test. Elections every four years are the competency test, and the 25th Amendment allows for incompetent presidents to be removed from office. Biden’s Cabinet did not remove him.
To find a historical precedent for the voiding of a pardon, you have to go back to a post-Revolution case in Virginia that featured three men convicted of treason for joining the British. Their pardons, issued by the Virginia House of Delegates, were ultimately voided because the Virginia Senate had not concurred, as required by the state’s constitution at the time.
Granted, all of this occurred before the US Constitution — much less a president’s pardon power, which was inspired by the British kings — had even been established.
Nevertheless, an effort to void Biden pardons has been building for months:
► Back in March, President Donald Trump declared Biden pardons signed by autopen as “VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT.”
► Taking up the baton, Republicans on the House Oversight Committee, known for their investigations of the Biden family’s business dealings, investigated President Biden’s use of the autopen, a mechanical signature utilized by multiple presidents, including Trump in his first term.
► Biden issued multiple pardons, including to his son Hunter, who was facing prison for tax and gun charges, and preemptively to people who antagonized or investigated Trump, like Sen. Adam Schiff of California and former House Speaker Nancy Pelosi. Given Trump’s follow-through in his promise to seek retribution against political enemies in his second term, those preemptive pardons have aged well in the minds of some Democrats.
► But to the question of whether Biden actually ordered them, he told the New York Times in a July interview that all pardons were his decision and that autopen was utilized due to the number of signatures required. But that has not quieted the conspiracy talk.
► In a report issued Tuesday, “The Biden Autopen Presidency: Decline, Delusion and Deception in the White House,” they allege a massive coverup of Biden’s cognitive decline and argue executive actions, including pardons, should be voided unless there is a clear documentation that Biden authorized them. Read more about the report here. It relies on testimony by former Biden officials, none of whom allege a conspiracy, but some of whom did invoke the Fifth Amendment to avoid answering questions.
► Attorney General Pam Bondi wrote on X that the Department of Justice is now investigating. Trump’s pardon attorney, Ed Martin, in a Monday email obtained by CNN’s Jake Tapper, wrote that he would not recognize certain pardons issued by Biden.
Trump has mused about self-pardons. Biden pardoned family members. Trump just last week pardoned a Chinese crypto billionaire who is a business ally.
To learn more about how, in the very unlikely event, a pardon might be voided and whether it could happen now, I went to Bernadette Meyler, a Stanford Law School professor and author of the book Theaters of Pardoning, which traces the roots of the pardon power to its expansive use today.
Portions of our conversation are below.
What could justify a pardon being voided?
MEYLER: There is no precedent on the federal level. There are court cases on the state level talking about the very stringent criteria that would have to apply if a pardon were to be voided … bribery or fraud in procuring the pardon, if it were judicially demonstrated, could potentially vitiate a pardon. But that is not something that has been a focus on the federal level.
That claim is that Biden was not sufficiently competent to issue the pardons. And so, you know, there’s no precedent that I know of at all on the state level or the federal level for that kind of play.
Is there a competence test for a pardon?
MEYLER: There’s no requirement that a president be competent to make any of the decisions in office. There is a provision of the Constitution for replacing the president in cases of incapacitation and competence might be thought of as one of those situations. But absent that replacement there really are no procedures for invalidating any action of a president on the basis of competence.
What mechanism could potentially be used to try to void a pardon?
MEYLER: I think probably the attorney general could try to sue for a declaratory judgment that the pardons were invalid because of some form of impropriety in the signing of them, or in the giving of the pardon. At least on the state level, one thing that has been emphasized is that it’s a very fact-based determination. Given the fact that Biden has claimed that he personally authorized all of the pardons and that he knew about all of them, I don’t really see that factual determination going against the pardon.
Trump wants to void pardons signed by autopen. What’s required for a pardon to be valid?
MEYLER: The pardon has to be the act of the president. But at the same time, the president obviously delegates a lot of tasks. … That’s one issue that’s kind of interesting, raised by some of the autopen stuff: What level of consent is required by the president to a pardon signed by autopen by a staff member later on? But there really are very few constraints on what can happen with a pardon. The only real constraint in the Constitution is that you can’t pardon in cases of impeachment.
Supporters of voiding pardons have pointed to that pre-constitutional case. Is it relevant here?
MEYLER: The pre-constitutional view of the pardon power was not uniform, and especially in Virginia. Thomas Jefferson had argued against the pardon power on the basis of the possibility that it was anti-democratic. So I’m not sure that we can use evidence from a time before the Constitution to determine in the US context the scope of the pardon power under the Constitution.
Pardons have become a political football in recent years. Should we rethink the presidential pardon power?
MEYLER: It’s definitely a moment to reassess. The pardon power under the Supreme Court’s construction of it has become only more like a divine right power than less since the time of the founding. The crucial moment was the late 19th century, when the court issued a lot of very sweeping opinions having to do with President (Andrew) Johnson’s power to pardon members of the former Confederacy … I don’t think it should be eliminated, because I think there are valid reasons for issuing pardons, and that there is an important place for review of judicial determinations and review of prosecutorial determinations after the fact, but I think it needs to be rethought in a democratic context.
How would the Supreme Court react to a challenge of Biden’s pardons?
MEYLER: They would not restrict Biden’s pardon power on the basis of these arguments that have been put forth by the House Committee, because I think their general trend is it towards a broader embrace of presidential power. If it were used against Biden, it could equally be used against Trump later on, right? So I’m not sure that in this kind of instance, they would go in favor of the Trump administration.