Maybe Donald Trump should have stuck to memeing Joe Biden over the autopen issue. His team put this out yesterday, to hilarious effect:
— Rapid Response 47 (@RapidResponse47) March 16, 2025
Instead of leaving it at ridicule, however, Trump has decided to escalate matters. Late last night, Trump declared all pardons signed by autopen to be legally void:
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. In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime. 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!
First, the main question is: Can presidents revoke previously issued presidential pardons for any reason? Nothing in Article II, Section 2 of the US Constitution suggests any review or recall authority for presidential pardons. The entire discussion of presidential pardoning authority rests in this one clause of the first paragraph: “and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
However, there are a couple of precedents, one quite recent — but it may not be helpful to Trump. Near the end of his term, George W. Bush issued a pardon for NYC developer Isaac Robert Toussie for a conviction for making false statements to HUD. The next day, however, Bush revoked his own pardon, with the White House claiming not to have known the extent of Toussie’s previous criminal history. However, this is a case of a president reversing his own pardon, one very specific case for specific reasons related to the grant of clemency, which directly related to Bush’s claim of a lack of proper intent due to insufficient knowledge. And it’s unclear whether Toussie challenged the revocation, or if he would have prevailed had he done so.
As far as I could find this morning, though, only one precedent exists for a president revoking pardons issued by a different president. When Ulysses S. Grant first took office, he revoked three pardons Andrew Johnson had issued in his final hours as president. In those days, though, pardons were not official until delivered to and accepted by the pardoned. Grant simply ordered the marshals to return rather than deliver the pardons, so they were voided in the process of the clemency action. That doesn’t apply today; pardons are considered instantly active on signature.
None of these precedents help Trump’s case here, especially in how he presents it. The use of the autopen is certainly a fair point for suspicion about Joe Biden’s agency, as I wrote last week, but it’s not proof of a lack of agency — which is what Trump argues here. Presidents use and abuse the autopen, and it’s a bad idea that should end ASAP, but its use doesn’t prove a lack of presidential intent to validate the documents in question.
To overturn these pardons on the basis of a Biden incompetency, one would have to prove in each instance that Biden didn’t himself intend and desire to issue those clemencies. Courts would put a high burden of proof on the Trump Department of Justice to prove that on each pardon that recipients defend, and the autopen and a tape of the June 27 debate won’t suffice. The lack of cognitive intent would have to be established in each separate case where challenges to revocation arise, and the DoJ would likely have to prove it by something more than a preponderance of evidence standard to get a federal judge to go along.
That’s especially true with the stinkiest of the pardons — those that went to Biden’s own family. Are they going to argue that Biden didn’t intend to protect his own Biden Inc family members? Yes, Biden claimed that he wouldn’t pardon Hunter, but Biden lied. Everyone knows that Biden lied about that, as well as most of everything else Biden ever discussed about himself. Your great-aunt Gertrude, dead lo these many years and now voting in Chicago elections, knows Biden lied and that he intended to pardon Hunter and every other Biden all along.
Basically, all this does is set up a bunch of lawyers to make a lot of money in a process that Trump won’t win. And for what? Some old cases that the DoJ probably wouldn’t pursue anyway at this point. It has the danger of setting precedents that could harm the people Trump has pardoned in his first term and in the past two months. We’re far better off sticking to autopen memes and pursuing a reform of the pardon process that allows for more review before pardons get issued in the first place.
Addendum: My colleague and friend Aaron Walker has a cheerier look at this over at Twitchy. He’s ordering popcorn. Seems like a good idea.
