The Senate Judicial Committee held a hearing Wednesday to assess the mental fitness of former President Joe Biden when he was in office.
Following Biden’s debate with now-President Donald Trump during the 2024 campaign and his subsequent departure from the presidential race there have been mounting questions about the former president’s ability to make decisions behind closed doors.
The hearing titled, “Unfit to Serve: How the Biden Cover-Up Endangered America and Undermined the Constitution,” not only dug into the Biden administration’s use of an autopen device to sign documents but addressed questions about how to hold his and future administrations accountable when it appears the president isn’t in command of decision-making.
Few Democrats attended the hearing, as Sen. John Cornyn, R-Texas, noted.
The ‘Autopen Presidency’
Cornyn said in his opening statement that the executive branch provides many essential duties on behalf of the American people. He asked rhetorically, “What are we to do when the president is incapable of performing these duties?”
The Republican senator said that since last June it became quite obvious that Biden was suffering “severe cognitive decline.” Cornyn said that it appeared there was a “conspiracy” to hide Biden’s true condition, “by his family, by his staff, by the media, by many elected officials.”
The recent book, “Original Sin,” by journalists Jake Tapper and Alex Thompson, amounted to a “mea culpa” by the media Cornyn said. But he said that what happened was a “constitutional crisis” much bigger than the president and his media defenders.
“With a compromised president, our government’s very legitimacy and capacity to function was undermined,” Cornyn said. Cornyn said that the hearing’s intent is to not let this failure be “swept under the rug,” and to get to the bottom of who was running the executive branch while Biden was unable to.
Sen. Eric Schmitt, R-Mo., who co-chaired the hearing, said in his opening statement that the American people deserve to know who was running the White House the last four years. He criticized Democrats on the committee for calling no witnesses for the hearing and “ignoring this issue like they ignored Biden’s decline.”
Schmitt said that he was the first senator to call for invoking the 25th Amendment, a constitutional procedure to replace an incapacitated president, against Biden.
“Our nation was effectively without a leader,” he said. “The absence of a functioning president wasn’t an abstract issue; it inflicted severe consequences on our nation.”
The Missouri senator said, “The Democrat Party, the corporate media, the federal bureaucracy, and Big Tech companies collaborated to conceal the truth from the American people, not out of ignorance, but because it advanced their own interests.”
He said Biden’s condition made it easy for him to become a “puppet” for other powerful interests. Schmitt called Biden’s time in the White House the “autopen presidency.”
Sen. Peter Welch, D-Vt., one of the few Democrats to attend the hearing, said that there was an ongoing constitutional crisis over Congress’ inability to make decisions on behalf of the American people.
Welch said that the Senate in recent months has failed to discuss the mounting national debt, the potential for engaging in wars abroad, the executive branch’s use of impoundment to reduce federal spending, and climate change.
All that the Senate has debated is “nominations,” Welch said. He said that debates about issues turn into “personal accusations of motivations, of cover-ups, of conspiracy, of bad character.” This means that debate over issues doesn’t happen, the Vermont senator said.
Congress’ Authority Over Reviewing Presidential Signature
John Harrison, a constitutional professor at the University of Virginia School of Law, addressed the issue of Biden’s autopen usage.
Harrison said that there is significant legal precedent that suggests the president can use an autopen or another person to sign documents on his behalf. Any person can use another method besides manual signature of a document “by indicating that the person signing the document has decided that person’s signature should be affixed to the document by some process other than a manual signature.”
Nevertheless, Harrison said that Congress has the power to regularize the process by which the president affixes his signature to documents. That includes a situation where an individual records when the president has authorized the use of his signature.
“Making sure that the president really has made a decision and that it wasn’t someone else with the president’s autopen, is a way to make sure that the power is properly exercised by the president,” Harrison said.
Theodore Wold, a visiting fellow for Law and Technology Policy at The Heritage Foundation, said the use of a president’s signature to take official action is of monumental consequence.
Whether it be a presidential pardon or the signing of a law, “the president’s signature is itself the protection of democratic principle. When the president signs he communicates his assent and endorsement of the action he takes.”
Wold said that it has been confirmed Biden used the autopen on many occasions, from the beginning of his presidency—including for controversial pardons of his family members and others—yet there is no publicly available record of Biden approving these actions.
“The Biden White House’s widespread use of the autopen to affix Biden’s signature to documents that exercise power belonging solely to the president poses significant constitutional, legal, and practical considerations,” Wold said.
Sen. Ted Cruz, R-Texas, later said that all of Biden’s orders after July 15, 2022, and nearly all of Biden’s executive orders were signed by autopen.
Cruz asked Wold whether an executive order signed by a staffer who autopen signs it without the president’s knowledge is legally binding.
“No,” Wold said.
Former White House press secretary Sean Spicer, who served in the first Trump administration, shared his experience serving in a White House.
Spicer said that for White House staff it is “critical” to have regular interactions with the president. Spicer admitted that he made some mistakes while doing his duties that were the result of not having proper communications with the president.
Spicer, who now hosts “The Sean Spicer Show,” said that while he served the president legacy media organizations were unduly critical of Trump’s mental fitness for office, yet said nothing when it became clear Biden was in steep decline.
The former press secretary said presidential staff would have and should have been interacting with Biden on a daily basis.
“At best, his administration was grossly negligent, at worst Biden’s staff actively concealed his fitness,” Spicer said.
What Did Biden and His Staff Know?
Several senators brought up questions about what Biden knew about the executive actions that were taking place in his name.
“Did Joe Biden actually assent to the use of the autopen in all you think of all the people he pardoned, he granted clemency to murderers, drug dealers, child rapists?” Sen. Josh Hawley, R-Mo., asked. “Let’s find out.”
Hawley insisted that the documents about Biden’s decisions to sign pardons, laws, and executive orders be subpoenaed.
Sen. Katie Britt, R-Ala., said that from the “outside” it was clear that all was not right with Biden, but that more needs to be done to put up effective “guardrails” for when a president isn’t in charge of his own decisions. Britt asked the witnesses if there is any way of holding presidential senior staff accountable for manipulating a president.
Wold said that some presidential senior staff of the Trump administration were brought before Congress to testify after January 6 and that Biden’s senior staff could be held “accountable” by Congress in the same way.
