Trump’s attacks on the autopen are back.
With a health care deadline looming and polls showing increasing frustration with congressional inaction on kitchen-table issues such as affordability, last week, President Donald Trump announced on social media that he was “terminating” all documents signed by President Joe Biden using the automated device.
According to Trump’s characteristically over-the-top Truth Social post, “Any document signed by Sleepy Joe Biden with the Autopen, which was approximately 92% of them, is hereby terminated, and of no further force or effect. The Autopen is not allowed to be used if approval is not specifically given by the President of the United States.”
Then, on Tuesday, Trump doubled down. “Any and all Documents, Proclamations, Executive Orders, Memorandums, or Contracts,” signed by autopen are voided, Trump posted. “Anyone receiving ‘Pardons,’ ‘Commutations,’ or any other Legal Document so signed, please be advised that said Document has been fully and completely terminated, and is of no Legal effect. “
Let’s be clear: Trump does not have the legal authority to void pardons — no president does.
This is nonsense. An autopen is a machine that duplicates signatures so busy leaders do not have to manually sign large volumes of documents. During the administration of George W. Bush, the Department of Justice’s Office of Legal Counsel issued an opinion concluding that a president’s autopen signature is legally valid. Even Trump himself uses an autopen, but “only for very unimportant papers.” One must wonder what kind of papers requiring a signature he deems “unimportant.”
And let’s be clear: Trump does not have the legal authority to void pardons — no president does. But regardless of the use of an autopen, a president does have the authority to repeal any executive order entered by his predecessors. Even if the basis for the repeal is nonsensical, as here with the autopen, Trump can repeal any executive order of a predecessor as he wishes. In his first day back in office, Trump did just that, rescinding 78 executive orders and presidential memoranda on a variety of topics, such as racial equity, immigration enforcement and climate change. Trump’s Jan. 20 executive order repealing those executive orders was entered without any reference to an autopen. What a president cannot do is repeal executive orders via social media tirade. Most executive orders, including those repealing prior executive orders, must be published in the Federal Register to be legally binding.
Why, then, is Trump announcing now that he has “ terminated” Biden’s actions that were signed with an autopen — a list, by the way, that Trump did not specify and which the Biden administration has never publicized.
Perhaps the answer lies in the second paragraph of Trump’s Nov. 28 social media post. He stated, without evidence:
“The Radical Left Lunatics circling Biden around the beautiful Resolute Desk in the Oval Office took the Presidency away from him. I am hereby cancelling all Executive Orders, and anything else that was not directly signed by Crooked Joe Biden, because the people who operated the Autopen did so illegally. Joe Biden was not involved in the Autopen process and, if he says he was, he will be brought up on charges of perjury.” Trump cites no facts to support his claims.
Here the president seems to be pushing the narrative that Biden was the puppet of a corrupt regime. He conjures the image of lawless members of a deep state cabal who were pulling the strings and must now be held accountable for their crimes. Trump’s historical revisionism provides further justification for his retribution crusade, in which he has directed the Department of Justice to file criminal charges against his perceived enemies, such as former FBI Director James Comey.
Reports indicate that a grand jury has been empaneled in Florida to investigate former government officials involved in the investigations of Trump into connections between his 2016 presidential campaign and Russia. Reports also state that grand jury subpoenas have been served on former Director of National Intelligence James R. Clapper Jr., and former FBI agents Peter Strzok and Lisa Page.
Trump’s recent diatribe follows prior claims that pardons Biden signed with an autopen are invalid. On the day before he left office, Biden issued preemptive pardons for individuals who had been threatened with legal action by Trump, including members of the House Select Committee that investigated the Jan. 6 attack on the U.S. Capitol. In a Truth Social post in March, Trump said, “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.” The March diatribe seemed to serve the same purpose as Trump’s most recent posts regarding manufactured autopen controversy — creating a basis, flimsy as it may be, to investigate his political enemies. Trump went on to warn House committee members that they were fair game, again making baseless claims: “Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!” The March post seemed to serve the same purpose as Trump’s most recent posts regarding manufactured autopen controversy — creating a basis, flimsy as it may be, to investigate his political enemies. Trump’s modus operandi has long been to simply announce an investigation even if it lacks any factual basis. In 2019, Trump was said to have asked Ukraine President Volodymyr Zelenskyy to “go to a microphone” and publicly announce an investigation into the Biden family. Following the 2020 election, Justice Department officials said Trump directed them to “just say the election was corrupt and leave the rest to me” and the Republican members of Congress. An announcement is all that is needed to smear the reputation of a rival, even if the investigation never finds wrongdoing. As Ed Martin, head of the DOJ’s Weaponization Working Group, has said, even if “bad actors” can’t be charged with a crime, “we will name them, and in a culture that respects shame, they should be people that are ashamed.” And so, if documents signed by autopen are invalid, and the people who surrounded Biden are criminals, then, in Trump’s world, let the investigations begin, baseless though they may be.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
