(WASHINGTON) — President Donald Trump is taking aim at one of his predecessor’s final acts in office: preemptive pardons for members of the House Jan. 6 select committee.
In a late-night social media post, Trump claimed without evidence President Joe Biden used an autopen to sign the pardons and so he considered them “hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT.”
Trump, who made retribution against his perceived political enemies a focal point of his 2024 campaign, said the committee members should “fully understand that they are subject to investigation at the highest level” despite no findings of wrongdoing.
Despite his claims, legal experts told ABC News that Trump does not have the power to overturn Biden’s actions.
A president’s clemency power is vested in Article II of the Constitution and is “broad and virtually unlimited,” said Jeffrey Crouch, an assistant professor at American University and expert on presidential pardons.
Its few restrictions include that it can only apply to federal offenses and can’t interfere with the impeachment powers of Congress.
In 1929, a memo by the solicitor general to the attorney general on pardons held that “neither the Constitution nor any statute prescribes the method by which Executive clemency shall be exercised or evidenced.”
“It is wholly a matter for the President to decide, as a practical question of administrative policy,” the department said. “Nobody but the President can exercise the power, but the power having been exercised the method of making a record and evidence thereof is a mere detail which he can prescribe in accordance with what he deems to be the practical necessities and proprieties of the situation.”
The memo was cited in a federal appeals court ruling just last year that said pardons don’t necessarily have to be in writing.
And while autopens (mechanical devices used to automatically add a signature to a document) have come under scrutiny in the past, the Justice Department as recently as 2005 determined they were constitutional and could be used for a president to sign a bill into law in a study commissioned by then-President George W. Bush.
Former President Barack Obama used an autopen to extend the Patriot Act, avert a fiscal crisis and more during his administration. Other presidents, including Lyndon B. Johnson and John F. Kennedy, are also documented as having used the device or one similar.
“If the autopen is illegal, then many of the actions and regulations that presidents have done for the past four or five decades are null and void. It’s a ridiculous argument,” said Elaine Kamarck, a senior fellow of governance studies at the Brookings Institution.
“There is nothing in the Constitution that requires that a pardon must be signed without an autopen. Obviously, that is a 20th century invention, and earlier presidents had no access to such technology. Nonetheless, Trump has zero authority to undo a Biden pardon, just as the next president has no authority to undo Trump’s pardons,” said Michael Gerhardt, a constitutional law expert at the University of North Carolina.
ABC News has inquired with Biden’s team and the current White House to learn more about their autopen usage but has not received comment.
Aboard Air Force One late Sunday, Trump was asked if any executive order or action from Biden that included an autopen would be considered null.
“It’s not my decision, that’ll be up to a court,” Trump responded, “but I would say that they’re null and void because I’m sure Biden didn’t have any idea that it was taking place, and somebody was using an autopen to sign off and to give pardons.”
White House press secretary Karoline Leavitt also suggested, without evidence, that Biden was unaware of his signature being affixed to the pardons.
“Was his legal signature used without his consent or knowledge?” Leavitt said during Monday’s briefing.
Asked specifically if attorneys at the White House told Trump he has the legal authority to undo a pardon because it was signed by autopen, Leavitt said Trump was just “begging the question that I think a lot of journalists in this room should be asking.”
Biden issued the eleventh-hour pardons just hours before Trump’s inauguration. He spoke several times in his final media interviews about how he was considering such an option for people he feared could be targeted in the next administration, such as Liz Cheney or Anthony Fauci.
What would happen if Trump tried to ignore or challenge Biden’s action?
“It could open a Pandora’s box if a sitting president tried to undo a pardon by one of their predecessors. The better rule would be that pardons — whether perceived as ‘good’ or ‘bad’ decisions — should be final,” said Crouch.
ABC News’ Molly Nagle and Nicholas Kerr contributed to this report.
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