Harvard Law School Professor Emeritus Alan Dershowitz said on Monday that challenges to former President Joe Biden’s use of an autopen for signing bills and issuing pardons “will end up in court.” Dershowitz explained on the John Solomon Reports podcast that there are several legal issues with the autopen that could lead to court challenges.
“They will end up in court, and there are going to be two issues. One, the nature of what was signed — was it a pardon, or was it a bill from Congress, for example. And second, the nature of the autopen,” Dershowitz said. “First, the nature of what’s signed. If it was a bill, here’s what the Constitution says: ‘If he approves, he shall sign it.’ So it says, ‘sign it.’ Sign it. So an autopen would raise a real problem if he signed it by autopen, which is not a real signature.
“Pardons, it doesn’t say anything about signing it. It says, ‘he shall have the power to grant reprieves and pardons.’ So I think the people who will try to sustain the pardons would argue, ‘look, he can pardon orally,’ and therefore it doesn’t matter whether he used the pen,” he continued.
“But it will still raise the issue, did he actually pardon? Or did somebody else just write the signature without really getting approval from President Biden? You know, we know there were mental health issues there. So there the issue will be, did he approve the pardon? And if he did, probably the nature of the signature won’t count,” the law professor opined.
Dershowitz also compared the nature of today’s autopen to Thomas Jefferson’s version, which was used to copy his letters five times as he wrote them. He contrasted that with today’s digital autopen, where anyone with access can simply click a button to “sign” the president’s signature. If someone used an autopen to sign a pardon that Biden did not want issued, “then they’re not valid,” Dershowitz stated.
“If, on the other hand, the president said, ‘Look, I’m pardoning my son — give me something to sign,’ and they used an autopen to sign it, I suspect that pardon would be upheld, because the Constitution doesn’t require that it be in writing, that it be signed, whereas the bills literally have to be signed,” he added.
“For example, if a bill was signed and forged by somebody, the bill would be invalid. And the question is, if a pardon is forged, but the president said, ‘you can forge my signature,’ you know that would be a different issue. So we don’t have enough facts to know whether or not any of the pardons could be challenged effectively,” he added.
