Provided concerns about the autopen are founded, it's also within the legal rights of President Donald Trump to take action, a constitutional law professor said on American Family Radio Thursday.
The autopen, a mechanical device that uses a real pen to replicate a person’s signature, has been used by U.S. presidents for decades to manage the high volume of official documents requiring presidential signatures. Its origins trace back to Thomas Jefferson, who used an early version called a polygraph machine to copy entire letters while writing.
The modern autopen, patented in 1803, evolved to use a template—now digital—that guides a pen to reproduce the signature with ink. It is intended for authorized, routine use when the president cannot physically sign documents due to travel, scheduling, or volume.
It is not meant, however, to substitute presidential decision-making but only to execute actions the president has already approved.
A 2005 Justice Department Office of Legal Counsel (OLC) opinion confirmed that the president need not personally affix a signature for a bill to become law and may delegate the act, including via autopen, as long as it is done with presidential authorization.
Power of the pen
Trump believes the autopen was hijacked during the apparent cognitive decline of Joe Biden while in office.
Trump last week announced in a Truth Social post that any document signed by Biden with the autopen – which Trump estimates at 92% -- is “herby terminated and of no further force or effect.”
Trump added that “Joe Biden was not involved in the autopen process,” and if the former president says otherwise he’ll be charged with perjury.
So, does that change the “voidability” of things such as pardons?
“I think it does,” Donnelly told show host Jenna Ellis.
But that authority may not extend to every document signed either by Biden’s hand or by the autopen.
“The Constitution does give the president the power to grant pardons. Executive orders are not in the Constitution. Proclamations are not in the Constitution. So, there's a difference among some of these documents that President Trump is seeking to void, and I think those differences make a difference,” Donnelly said.
Whether every pardon granted during Biden’s time was signed with his full knowledge and blessing is a valid question, Donnelly said.
Fox News has reported that Biden’s pardon granted to his son, Hunter Biden, was actually hand-signed by the outgoing president.
But pardon’s granted to Dr. Anthony Fauci and Joe Biden’s brother, James Biden, were allegedly signed by the autopen.
"I don’t like the fact that Anthony Fauci got a pardon. I think he should be prosecuted. He did terrible things to our country, and there are other people who got pardoned who did the same things, but that's the president's prerogative,” Donnelly said.
Trump just last week pardoned Democrat House member Henry Cuellar of Texas. He had been charged by Biden’s Department of Justice with bribery for allegedly accepting $600,000 to work for the interests of the Azerbaijan government in Washington.
Cuellar is known to routinely break ranks with Democrats, voting against his party 21.3% of the time, second only to Kentucky Republican Thomas Massie in terms of a lawmaker voting against his party.
Donnelly: Autopen headed to High Court
Eventually, the U.S. Supreme Court will weigh in on Trump’s abolishment of Biden’s autopen documents, Donnelly predicts.
The autopen has been around for years, but whether its authority has been abused has never been challenged legally, he said.
“Somebody’s going to have to sue somebody or seek to prosecute somebody who was pardoned, and then it will take years, probably, to go up to the Supreme Court,” Donnelly said.
No president should get overly comfortable with the convenience of the autopen.
“The President shouldn’t be granting the staff or his advisers any authority to make those kinds of decisions. If Joe Biden did that and was not aware of specific pardons, there’s a real question about whether they have any effect,” Donnelly said.
