Republicans Are Trying to Turn Biden’s Autopen Use Into a Huge Scandal. Here’s the Truth.

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The controversies created by Joe Biden’s late-term pardons were reinvigorated this week by a story in the New York Times describing the White House processes that generated some of those pardons. On the right, the article produced harsh criticism of Biden’s judgment and mental competence as well as renewed calls for investigation into his pardons by Congress and the Justice Department. On the left, the principal theme was exasperated dismissal of the pardon story as a baseless attempt to distract attention from Donald Trump’s never-ending cascade of scandal and outrage.

As an academic student of the presidential pardon power, I think the new information deserves a more nuanced and dispassionate treatment than partisan combatants have given it. Taken as a whole, the Times reporting debunks many of the Republicans’ wilder claims. But it also raises one fairly debatable question about the validity of some of Biden’s pardons and, more importantly, reinforces the impression that the process that produced a number of these pardon decisions was irregular, hurried, and sometimes poorly executed.

To begin, recall that the Biden pardon brouhaha embraces at least five sets of pardons: the president’s pardon of his son Hunter, both for crimes of which he had been convicted and for those he might have committed; the “prospective” pardons of members of Biden’s family, former officials Anthony Fauci and Gen. Mark Milley, and members and staff of the Jan. 6 Committee to protect them from feared retaliation by the incoming Trump administration; the Dec. 23, 2024, commutation to life imprisonment of all but four occupants of federal death row; the Dec. 12, 2024, commutation of the remaining prison time of 1,499 federal defendants who had been released to home confinement during the COVID-19 pandemic; and the Jan. 17, 2025, commutation reducing the sentences of 2,490 nonviolent drug offenders.

These very different clemencies have generated multiple distinct criticisms.

The pardon of the president’s son was decried as a gross exercise of nepotism unjustifiably benefiting a confessed felon. The prospective pardons of other Biden family members, allies, and Trump critics were excoriated as an effort to cover up supposed corruption and shield those who had—supposedly—baselessly hounded Trump. My view, expressed while Biden was still president, was that the Hunter pardon was an understandable but mistaken expression of fatherly love and that prospective pardons of others would be understandable in light of Trump’s known vindictiveness but would create a profoundly undesirable precedent. I still think the precedent is regrettable and is likely to seem even more so when Trump preemptively pardons the many genuine legal transgressions of his own people. But given Trump’s grotesque and unapologetic weaponization of the Justice Department, Biden’s action has become harder to criticize.

Biden’s sweeping commutations of the sentences of some 4,000 ordinary federal felons have been subjected to a different set of complaints.

Predictably, some tough-on-crime types deplore sentence reductions this numerous, especially for murderers sentenced to die, as inappropriate presidential nullification of the considered conclusions of the justice system. And it must be said that Biden’s intervention was unprecedented. No other president has ever commuted the sentences of nearly so many federal convicts. The closest analog was Obama’s clemency initiative (itself unprecedented), which commuted about 1,700 sentences, less than half Biden’s total. And while most presidents have commuted some death sentences, none has ever commuted a block of capital defendants, all but clearing federal death row.

That said, no one has claimed that Biden lacked the power to award commutations at this scale. Any such assertion would be unsupportable. The Constitution confers on presidents the “Power to grant Reprieves and Pardons for Offences against the United States.” This language has always been interpreted to include sentence commutations. And there is no numerical limit on the pardon authority.

Republicans have instead promoted several other complaints about Biden’s mass commutations. The first and most sensationalist is an extension of the 2024 campaign theme that the aging Biden was non compos mentis during the later stages of his presidency and was not really performing his duties as president. On pardons, Republicans seized upon the fact that the pardon warrants for some or all of Biden’s late-term pardons were signed not by the president himself but with an autopen.

They argued that this was evidence of Biden’s general incapacity and further suggested that the pardons and commutations might be invalid for one of three reasons: 1) Biden was somehow legally incompetent to grant clemency, 2) The autopen signature proved that Biden did not himself authorize these clemencies, or 3) Regardless of Biden’s mental acuity and subjective intentions, an autopen signature is legally insufficient to validate a grant of clemency.

The first and third of these arguments are easily dispensed with.

Although Biden was undeniably diminished at the end of his term, there is no credible evidence that he was mentally unable to perform the duties of his office. More to the point, there is no constitutional mechanism for invalidating presidential action with a retrospective competency challenge. Constitutionally, presidents are president during their terms unless they are impeached and convicted, they die, or they are removed by the processes of the 25^th Amendment. Actions taken by presidents while president bear a virtually irrebuttable presumption of legal legitimacy. Moreover, the Supreme Court has held that a president’s choice to award pardons, commutations, and reprieves is neither reviewable by the courts nor reversible by Congress.

As for autopens, presidents (including Trump) have used them for decades, and the DOJ’s Office of Legal Counsel long ago opined that autopen signatures are perfectly valid so long as they provide a visible indication that the president approved some action.

That said, if it could be shown that an action purportedly taken by the president was actually performed by someone else without authority to do so, that would be different. For example, if someone forged a pardon warrant without any knowledge of the president, that warrant would be invalid.

Which brings us to the recent Times story. The facts reported there, as well as numerous public statements by Biden, demonstrate without a doubt that he fully intended to pardon his son, some family members, Fauci, Milley, and the Jan. 6 Committee.

However, the Times revealed details of the White House process for issuing the mass commutations that raise a potentially worrisome point. Biden plainly did authorize, in principle, the three large commutations in December and January for home confinement defendants, death row inmates, and nonviolent drug offenders. But, as the Times reported,

Mr. Biden did not individually approve each name for the categorical pardons that applied to large numbers of people. … Rather, after extensive discussion of different possible criteria, he signed off on the standards he wanted to be used to determine which convicts would qualify for a reduction in sentence.

Then, using these criteria, White House staff assembled a list of qualifying names that were placed on a single master warrant for each categorical pardon. That list was then tweaked based on input from the Federal Bureau of Prisons, and the master warrant was finally signed with an autopen, apparently without Biden having reviewed the final list himself.

This procedure does raise some questions. From medieval England to the present, kings and presidents have often issued group or categorical pardons, not by listing names, but by specifying parameters for those who would qualify. Similarly, beginning in the Eisenhower administration, presidents have often issued “master warrants” listing many names rather than issuing one signed pardon warrant for every individual pardon.

In the past, those wishing to benefit from a categorical pardon would bring it to the attention of a court or other appropriate official and show that they qualified under its terms. But the pardon was perfectly valid even though the executive authorizing it didn’t approve any list of names (or indeed know the names of most of those who might qualify).

Modern master warrants are simply an efficiency mechanism, obviating the need for the president personally (or by autopen) to sign a different document for every beneficiary. Nonetheless, the operating assumption in the use of master warrants is that presidents will choose to approve every person on a particular list—even though the odds are that in most cases they’re just accepting the recommendations of the DOJ and their staff without having the faintest idea who the vast majority of these people are or why they deserve a pardon.

However, Biden did something new. He approved three group pardons based on specified criteria, not names, but then had his staff compile a pardon warrant consisting of a list of names meeting those criteria, to which staff affixed an autopen signature.

Are these pardons valid? I think almost certainly. Biden made a decision and told his staff, in effect, “I intend to commute the sentences of everyone who meets Criteria A, B, and C.” If he had simply issued a proclamation saying just that, it would be valid as to everyone meeting Criteria A, B, and C. American history is full of such pardons, from James Madison’s 1815 pardon of the Barataria Pirates to Andrew Johnson’s Civil War–era pardons of ex-Confederates, multiple presidents’ pardons of rebellious or polygamous Mormons, and a slew of 20^th-century postwar pardons of deserters and draft evaders.

The only tricky bit for Biden’s categorical commutations is that the pardon warrants contain lists of names but no enumeration of the presidentially approved selection criteria. Indeed, so far as I am aware, there is no public record of what the criteria were. And it seems Biden never saw the final list of names before the autopen signature. So can he be said to have approved them?

I think courts will turn away any challenge to these commutations because the primary question, as I have explained elsewhere, is one of intention: Did the president intend to pardon the individuals claiming benefit of the pardon? And here it seems plain that he did, albeit clumsily.

It is worth observing that there were sound reasons for drafting the warrants as lists of names. Categorical clemency grants framed only in terms of qualifying criteria require would-be beneficiaries to come forward and prove that they qualify. They also require courts to sort out the claims. A warrant drafted as a list hugely simplifies clemency implementation. In addition, had Biden taken the categorical approach, the incoming Trump administration would surely have tried to defeat his benevolent purpose by slow-walking or outright opposing individual applications for relief.

Another problem with purely categorical pardons is that they create the risk of granting relief to some who meet the stated parameters but are for other reasons undeserving. Creating a list of those to be named in a pardon warrant should, if the process is properly executed, ensure that this doesn’t happen. Unfortunately, Biden’s end-of-term process was so rushed that some really bad actors—like Michael Conahan, the former judge who took bribes for sentencing juvenile offenders to a private prison—got relief. Criticism of this aspect of the president’s actions is entirely fair.

The bottom line on the Biden pardons is that all of them were almost certainly constitutionally authorized and legally valid. Some, particularly those of his family, were probably ill advised, though the final judgment on that will depend on future developments. And the group commutations, whatever one thinks of them as criminal justice policy, suffered from defects stemming from hasty execution that open the door to legal quibbles and political exploitation.

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