In Trump’s Revenge Fantasy, Biden Did Not Actually Pardon Members of the January 6 Committee
On his way out the door in January, then-President Joe Biden preemptively pardoned five of his own relatives, along with several former federal officials and the members of the House select committee that investigated the 2021 riot at the U.S. Capitol. Or did he?
According to President Donald Trump, those pardons did not really happen. “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,” Trump wrote on Truth Social late Sunday night. “In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them!”
Contrary to what Trump seems to think, presidents have no authority to override their predecessors’ acts of clemency, and the use of an autopen does not render presidential pardons invalid. In other words, Trump’s social media rant cannot undo what Biden did, allowing the criminal investigations that the pardons were aimed at blocking. But it does suggest that Trump, despite his intermittent attempts to assure us that he won’t use his presidential powers to punish his political opponents in the guise of criminal justice, would like very much to do exactly that.
Biden’s nakedly self-interested pardons, which he said were necessary to protect his relatives and allies from legally baseless, politically motivated investigations by the incoming Trump administration, lent credence to vague claims that the pardon recipients had committed crimes. They also set a dangerous precedent by inviting future presidents to shield their underlings from accountability for breaking the law. They nevertheless fell within Biden’s broad constitutional authority to “grant reprieves and pardons for offences against the United States, except in cases of impeachment.”
Is Trump right that pardons are valid only if they carry the president’s manual signature? Not according to the Constitution, which imposes no such requirement.
“Absent a constitutional constraint, the President’s ability to commute a sentence is not subject to any further formal limits or requirements,” the U.S. Court of Appeals for the 4th Circuit noted last year in Rosemond v. Hudgins, which involved a prisoner who claimed that Trump’s remarks during a telephone call qualified as a commutation. That principle, the appeals court said, “resolves the matter of whether a writing is required as part of the President’s exercise of the clemency power. The answer is undoubtedly no.”
If “a writing” is not required to make a pardon valid, it follows that a manual signature is not required either. The whole debate about exactly which documents Biden may have signed with an autopen is therefore beside the point.
When a president signs legislation, the process is much more constrained than when he grants clemency, since it involves another branch of government and a constitutionally specified procedure. But even in this context, the Justice Department’s Office of Legal Counsel advised in 2002, a manual signature is not required.
“The Constitution provides that a ‘Bill’ that has passed both Houses of Congress becomes law when the President, having ‘approved,’ ‘shall sign it,'” Principal Deputy Attorney General M. Edward Whelan III noted in a two-page memo to Alberto Gonzales, George W. Bush’s second attorney general. “You have asked whether the President will have ‘sign[ed]’ H.J. Res. 174 when a White House aide, acting at the President’s specific direction, affixes the President’s signature to H.J. Res. 174. For the reasons that we briefly outline here, we conclude that the answer is yes.”
Just as the require
Article from Reason.com
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