By Fred Lucas, The Daily Signal | March 19, 2025
The pardon authority is the president’s alone and cannot be delegated, according to a legal analysis by The Heritage Foundation’s Oversight Project. The watchdog group—which first conducted an analysis of former President Joe Biden’s White House use of autopen—released a memo late Monday night on the matter, bringing the numerous acts of clemency into question.
“Every leftist who shrieked, whined, and moaned about defending democracy is a complete hypocrite if they are not outraged by the antidemocratic action on the scale of presidential actions enacted by people who were never elected to anything,” Oversight Project Executive Director Mike Howell told The Daily Signal Tuesday.
Howell added, “The pardons are as valid as a $3 bill.”
The legal analysis came after President Donald Trump, based on the Oversight Project’s investigative work, said he would nullify the pardons.
Pardons included members of Biden’s family, members of the House Jan. 6 committee, former National Institute of Allergy and Infectious Diseases Director Dr. Anthony Fauci, and former Chairman of the Joint Chiefs Gen. Mark Milley.
“If President Biden’s non-delegable official actions were not his own, then they are invalid,” the analysis says. “Start with the Constitution. Multiple Constitutional provisions, like the pardon power, vest those powers solely in the president. In those cases, the president affixing his signature is his execution of the acts as president.”
The use of the autopens occurred amid broad speculation about whether Biden had enough cognitive capacity to carry out the job of president.
An early 2024 Justice Department report by special counsel Robert Hur—regarding Biden’s handling of classified information—found Biden had “diminished faculties” during the counsel’s interview. Biden’s own Democrat Party eventually forced him off the 2024 ticket during last year’s election.
Howell predicted the end of the Democrat Party, which he said will meet its demise “defending terrorists, transgenders, and autopens.”
“If we have autopen, we don’t really need them anyway,” Howell said.
The use of autopen is not new for presidents and staffers, but has traditionally been for minor or routine proclamations.
Howell stressed that after the John F. Kennedy assassination, the 25th Amendment was enacted to ensure a process is in place if an incapacitated president is not able to serve. In this case, the autopen was misapplied, Howell said.
“This was a device used as a workaround of the 25th Amendment,” Howell said.
Based on a 2005 Justice Department Office of Legal Counsel finding, it’s permissible to use autopen signatures for legislation. The Oversight Project contends the DOJ was wrong in its conclusion.
Nevertheless, the DOJ’s Office of Legal Counsel 2005 opinion states, “We are not suggesting that the president may delegate the decision to approve and sign a bill, only that, having made this decision, he may direct a subordinate to affix the president’s signature to the bill.”
The Oversight Project analysis adds, “Thus, the Biden administration’s use of the autopen may well have been contrary even to the most permissive interpretation of the law.”
Autopen_Memorandum_(Final)Download
The Oversight Project’s memorandum examines the Biden administration’s use of the autopen to exercise “non-delegable presidential power to issue clemency in light of President Biden’s deteriorating mental state throughout his Presidency.”
The memorandum says, “This apparent use raises concerns about: whether President Biden personally authorized each official act; whether or which unelected staff controlled the autopen device; and whether they acted with his approval. These concerns are amplified by substantial public evidence of President Biden’s cognitive decline during his term.”
The Daily Signal reached out to the Biden Institute at the University of Delaware, the 46th president’s platform for public engagement, which did not immediately respond for comment.
Fred Lucas is chief news correspondent and manager of the Investigative Reporting Project for The Daily Signal.
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