President Trump has ordered an investigation into whether President Joe Biden used an autopen to sign documents in office, a routine presidential practice that Trump alleges was part of a conspiracy by Biden aides to cover up his cognitive decline.
On Wednesday, Trump signed a presidential memorandum tasking White House Counsel David Warrington, in consultation with Attorney General Pam Bondi, with investigating "whether certain individuals conspired to deceive the public about Biden's mental state and unconstitutionally exercise the authorities and responsibilities of the President."
In a statement shared with NPR, Biden stressed that he made the decisions about pardons, executive orders, legislation and proclamations during his presidency.
"Any suggestion that I didn't is ridiculous and false," Biden said. "This is nothing more than a distraction by Donald Trump and Congressional Republicans who are working to push disastrous legislation that would cut essential programs like Medicaid and raise costs on American families, all to pay for tax breaks for the ultra-wealthy and big corporations."
Trump told reporters in the Oval Office on Thursday that he had not uncovered any evidence that the documents were signed without Biden's approval, but said he thought the former president's dismal debate performance showed he wasn't in control.
"But I've uncovered, you know, the human mind," Trump said. "I was in a debate with the human mind, and I didn't think he knew what the hell he was doing."
Trump's investigation comes amidst a wave of renewed scrutiny into the mental and physical capacity of the former president, who announced a diagnosis of aggressive prostate cancer last month. Growing concerns about Biden's fitness for office forced him to call off his reelection campaign later that year.
Last month also saw the publication — and headline-making press tour — of Original Sin: President Biden's Decline, Its Cover-Up, and His Disastrous Choice to Run Again, a book by CNN's Jake Tapper and Axios' Alex Thompson that chronicles Biden's cognitive decline in office and his aides' efforts to shield it from public view.
Also in May, Axios published audio recordings of Biden's 2023 interviews with Robert Hur, the special counsel who investigated Biden's handling of classified documents as vice president. Hur ultimately did not prosecute Biden, saying a jury would likely have viewed him as "a sympathetic, well-meaning, elderly man with a poor memory."
A 258-page transcript, released after Hur's February 2024 report, showed Biden struggling to recall key dates and details, which the newly released recordings reflect in long silences and prodding from aides.
Biden has since said that reports of his cognitive decline "are wrong."
In his memorandum, Trump contrasted reports of Biden's "cognitive deficiencies" with his prolific policymaking, saying the Biden administration issued over 1,200 presidential documents, appointed 235 federal judges and signed a record number of pardons, including commuting the sentences of 37 federal death row prisoners.
Trump alleges without evidence that the "vast majority" of Biden's executive actions were signed with an autopen, which he says throws their validity into question.
It is not clear whether Biden used an autopen— a machine that duplicates signatures using real ink — to sign documents or whether doing so would render any of his actions void, though legal experts have reason to doubt it would. Use of the device has been commonplace among presidents for decades — Trump himself said in March that he used it, albeit for "only very unimportant papers."
"You know, we get thousands and thousands of letters, letters of support for young people, from people that aren't feeling well, etcetera," Trump told reporters on Air Force One. "But to sign pardons and all of the things that he signed with an autopen is disgraceful."
Legal experts, however, say the use of autopen has no bearing on the validity of pardons or legislation.
Presidents have long used autopens without issue
The notion that Biden relied on the mechanical pens was heavily promoted by the Oversight Project, an arm of the Heritage Foundation that played a key role in promoting false claims about noncitizen voting last year. It taps into a larger right-wing conspiracy that Biden wasn't actually in charge as president.
Concerns about Biden's fitness for office are not new — even from Trump, who became the oldest president inaugurated when he began his second term at age 78. This isn't the first time Trump has called his predecessor's signatures — and authority — into question.
In March, Trump wrote on social media that Biden's preemptive pardons of members of the House committee investigating Jan. 6 were "hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OF EFFECT, because of the fact that they were done by Autopen."
But Jay Wexler, a professor of constitutional law at Boston University School of Law, told NPR at the time that it's not clear the pardons could be rescinded for that or any other reason.
Article II, Section 2 of the Constitution says the pardon only needs to be "accepted by its subject" to take effect — and does not mention anything about reversing them after the fact. Importantly, Wexler said, it does not require the pardon to be in writing whatsoever.
"The argument that the pardon fails because it was signed by an autopen fails at the get-go, because there's no requirement that the pardon even be signed," he explained, calling the issue a "distraction" and "nonstarter."
Presidents have long used autopens to sign correspondence and other documents. Thomas Jefferson was an enthusiastic early adopter of its precursor, the 19th-century polygraph, while Harry Truman and Gerald Ford are rumored to have used modern-day devices, which hit the market after World War II.
President Lyndon Johnson is credited with publicizing the practice by allowing photos of the device to be taken during his time in office. The result was a 1968 National Enquirer cover story headlined "One of the Best Kept Secrets in Washington: The Robot that Sits in for the President."
The Bush Justice Department examined their legality
It wasn't until the 21st century that autopens were used for signing legislation, at least openly.
President George W. Bush didn't use the autopen to sign bills, though his defense secretary, Donald Rumsfeld, was criticized for using one to sign hundreds of condolence letters to families of troops killed in the Iraq War.
Bush commissioned the Office of Legal Counsel to evaluate the constitutionality of signing a bill with an autopen. In a 29-page document published in 2005, the Justice Department concluded that the president "need not personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law."
"Rather, the President may sign a bill ... by directing a subordinate to affix the President's signature to such a bill, for example by autopen," it reads, though it emphasizes that "we are not suggesting that the President may delegate the decision to approve and sign a bill."
President Barack Obama became the first known president to use an autopen for legislation when he signed a Patriot Act extension while in France in 2011.
He did so to sign several more bills over the years, including a tax bill while vacationing in Hawaii, an emergency spending bill during a 2014 visit to Indonesia and an extension of highway funding from Malaysia.
"This is an issue that in the past had come up a couple times, but it had always come up in kind of urgent circumstances," former Deputy Attorney General Howard Nielson told NPR in 2011.
Nielson, who wrote the 2005 Justice Department memo, said that what matters is a president's decision to approve a bill, not the mechanics of how he signed it.
He noted that the veto clause in the Constitution says, "If he approve he shall sign it, but if not he shall return it." The latter, he said, has "never been understood that he actually has to physically walk down Pennsylvania Avenue and hand it to Congress himself."
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