Teaching Constitutional Law in the Pacific Northwest over three decades, I made the acquaintance of many buckaroos who would wander down from the hills and explain to me that the Fourteenth Amendment isn’t a real Amendment; that Federal Reserve notes aren’t real money; and that federal courts aren’t real courts (because in most courtrooms there’s a fringe on the American flag).
These are soul-numbing—and, in their way, heart-rending—displays of gullibility by interlocutors, often sincere and intelligent, who choose to live in a headspace where the law is Harry Potter-style magic rather than the complex social and political institutions in which lawyers and judges actually work. What is even more soul-numbing—and significantly less intelligent—is seeing this level of dysfunction displayed by the chief executive.
Yesterday, mostly out of the blue, the American people were treated to just this sight. Donald Trump suddenly decided that federal pardons aren’t real pardons because a presidential signature wasn’t an actual signature.
Here is Trump’s post on his proprietary social medium site:
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!
Thank you, Mr. President, but, well . . . no.
Here is a small sampler of what is wrong with Trump’s latest paroxysm. First, Trump doesn’t know that Biden used an autopen. The “report” by the magicians at the Heritage Foundation’s “Oversight Project” is based on the fact that signatures on online documents signed by Biden bear identical signatures. This, of course, must mean that the originals were signed by Autopen.
Except, um, no: even before Trump’s tantrum, Snopes.com had explained that this “evidence” was not evidence at all:
the National Archives, which runs the Federal Register, said in an emailed statement that official documents published in the Federal Register use a copy of the president’s signature that “comes from one graphic file.” “At the beginning of each administration, the White House sends a sample of the President’s signature to the Office of the Federal Register, which uses it to create the graphic image for all Presidential Documents published in the Federal Register,” communications staff at the National Archives wrote. As the Federal Register’s digitized documents do not represent what the signature looks like on the original documents, the Oversight Project’s claim lacks credibility.
Beyond that, there is no principle of law invalidating a pardon—or any presidential document—because an autopen signs it. The autopen, invented by Thomas Jefferson (for those scoring at home, our third President), is as American as the Thanksgiving turkey pardon. By law, a presidential autopen signature on a document is as valid as one written by hand. A formal opinion from the Department of Justice’s Office of Legal Counsel delivered in July 2005, “Whether the President May Sign a Bill by Directing That His Signature Be Affixed to It,” clarifies this. After an extensive review of the history of presidential signatures and the meaning of the term in the context of the Constitution, the opinion states, “We conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7.”
Here is a critical fact broken down into particles small enough to be digested even by the Oversight Project: Even if you think the OLC opinion is wrong, it is still the law. You don’t get to begin invalidating documents by pretending it does not exist.
In fact, the executive branch law goes beyond this explicit approval of documents signed with an autopen. The law states that a pardon doesn’t need to be in a signed document. A 1929 legal opinion for Attorney General William D. Mitchell, formally entitled In re signature of the President on pardon warrants and signatures of the President and the Attorney General on commissions of notaries public in the District of Columbia and signed by Acting Solicitor General Alfred A. Wheat, explains 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. 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 properties of the situation. . . . [C]ustom and propriety require that the pardoned man be given some token to show that he has been pardoned. That need not have the President’s autograph. If it shall bear the facsimile signature and be certified by an official having charge of the records as having been issued by the President, or by his direction, that will be sufficient.
That is, “wholly a matter for the President issuing the pardon to decide.” In Trump-level language, Biden’s pardons are none of Trump’s beeswax. He has no power to “hereby declare” anything about them pardons, and certainly not that they are “VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT”—even if he magically “declares” them void IN ALL CAPITAL LETTERS.
This latter point is not a “some legal experts say Trump’s claim is exaggerated” type of mistake. We are instead deep in kookaburra-sits-in-the-old-gum-tree territory.
Lest anyone think that this article constitutes a claim of a lifetime of expertise in matters related to Article II Sec. 2 cl. 1, I, a trained lawyer, was able to locate and read the documents referenced above (along with two Congressional Research reports on the history and extent of the Pardon Power) in one afternoon of legal research—in other words, time that someone should have been willing to invest in preventing the president from making a horse’s ass of himself.
Of course, this is not how things work inside the asylum formerly known as the White House, and who can doubt that some lackey can be found to convince a grand jury to indict one of those Biden pardoned? All this hyperventilation aims to intimidate and impose costly legal fees upon those who Trump thinks did him wrong, but a robust defense fund will, I predict, spring up overnight for whichever of the pardoned the Trump Justice Department takes after first.
We are growing, unfortunately, all too accustomed to efforts by Trump & Co. to give bizarre new meanings to obscure phrases in the Constitution (witness his claim that a Venezuelan street gang is an invading military). But even so, there is something peculiarly disturbing about this week’s excursion from reality. This latest word salad is not merely wrong. It is insane. It bespeaks a cranium in which facts have been replaced by half-baked concepts copulating with half-forgotten dreams.
In other words, it is the product of a mind diseased. The signs of madness are all around us. Whether because of age-related decline or something more serious, the person who fell into this psychic trap is barely fit to walk unattended, much less to lead a nation of 340 million.
