CNN
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President Donald Trump first focused on Joe Biden’s use of the autopen in March, leaning into the idea that the former president’s use of the tool to sign documents showed that he wasn’t in charge while in the White House and that his actions were “null and void.”
At the time, conservative executive authority scholar John Yoo wagered to CNN that Trump was “just having fun at Biden’s expense.”
Trump on Wednesday sought to take this outside the realm of mere “fun.” He ordered an investigation of Biden’s use of the autopen and its supposed links to Biden’s “cognitive decline.”
The move is guaranteed to breathe even more life into a story that has proven to be catnip for conservative media eager to keep the focus on the alleged coverup of Biden’s decline. And Trump has certainly shown a talent for seeding baseless conspiracy theories for political gain (see: birtherism and the false notion that the 2020 election was rigged, among them.)
But it’s difficult to see how this leads anywhere, for a few reasons.
The first is that there is nothing evidently wrong or unlawful about using the autopen.
In 2005, the Justice Department’s Office of Legal Counsel (under Republican President George W. Bush) conducted an extensive review of the legality of a president using the autopen. It found 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.”
Trump has most often focused his autopen theory on Biden’s pardons. (The idea that these are invalid would ostensibly allow Trump’s Justice Department to investigate and charge the people Biden preemptively pardoned.)
But there too, established legal advice from past administrations undermines the claim. A 1929 memo from the US solicitor general noted that the Constitution didn’t even prescribe a method for issuing pardons.
That means they don’t necessarily even need to be publicly documented. (You might have heard in recent years about the prospect of “secret” pardons.) And the memo explicitly says that pardons “need not have the president’s autograph.”
The other key point is that many presidents have used this practice in one form or another. Thomas Jefferson bought and used such a machine back when it was first patented in 1803, according to the Shapell Manuscript Foundation.
And even Trump himself has acknowledged using the autopen for certain things.
Trump said back in March he has used it but “only for very unimportant papers.” He specifically cited responding to people’s letters.
But in another case, Trump rather curiously seemed to indicate that he hadn’t signed a major proclamation that bore his signature – the one at issue in his attempt to rapidly deport migrants using the Alien Enemies Act. That proclamation is a major issue in litigation that has already reached all the way to the Supreme Court.
“I don’t know when it was signed, because I didn’t sign it,” Trump said, adding: “Other people handled it, but (Secretary of State) Marco Rubio has done a great job and he wanted them out and we go along with that.”
Given the proclamation bore Trump’s signature, that seemed to raise the possibility that the administration might have used the autopen for it. The White House later claimed Trump had in fact signed the proclamation and that he was instead referring to not having signed the original Alien Enemies Act.
(But that argument strained credulity, given Trump cited how “other people handled it” and the fact that the Alien Enemies Act dates to 1798. That means there is no way anyone could ever believe Trump might have signed it. The question Trump responded to also specifically referenced the proclamation, not the 1798 law.)
In another way, Trump’s Wednesday night memorandum isn’t really about the autopen. It’s about using that as a shorthand for something else entirely: what the memo calls Biden’s “cognitive decline.”
Trump’s order isn’t just about reviewing whether any autopen signatures used by Biden were lawful; it also cites the idea that people used it as part of an effort to “unconstitutionally exercise the authorities and responsibilities of the President.”
“I’m sure that he didn’t know many of the things – look, he was never for open borders, he was never for transgender for everybody, he was never for men playing in women’s sports. All of these things that changed so radically, I don’t think he had any idea … what was going on,” Trump told reporters in the Oval Office on Thursday. “Essentially, whoever used the autopen was the president.”
This theory – if ever somehow proven – would actually matter.
The 2005 Bush Justice Department memo, for instance, made clear that while presidents could outsource the signing of documents, that doesn’t mean they could necessarily outsource the decisions to sign the documents.
The OLC memo emphasizes that “we do not question the substantial authority supporting the view that the President must personally decide whether to approve and sign bills.”
But however compelling the evidence that Biden administration officials covered up his decline, there remains no evidence that he wasn’t actually making decisions to sign things. That’s taking things to an entirely different level.
Biden’s advisers have denied any coordinated effort to conceal from the public his deteriorating condition during the final years of his presidency.
And the 2005 DOJ memo suggests it would have to prove more than just that Biden wasn’t particularly engaged, but that he didn’t make the final decisions.
Trump was asked Thursday if he had uncovered “anything specific” that was signed without Biden’s knowledge or by people in his administration who acted illegally. Trump said, “No.”
Biden, for his part, issued some strong statements late Wednesday.
“I made the decisions about the pardons, executive orders, legislation, and proclamations,” the former president said. “Any suggestion that I didn’t is ridiculous and false.”
The former president also called this “nothing more than a distraction” to obscure Republicans’ push for a dicey Trump agenda bill, which features Medicaid cuts in the House-passed version. The Congressional Budget Office estimated Wednesday that this could lead to millions of people losing their health insurance.
Indeed, the political utility of the theory underlying Trump’s memo is readily apparent. It’s wildly popular in conservative media, with Fox News already devoting dozens of stories and extensive coverage to it. That includes this week when other outlets were focused on a decidedly less helpful story for the Trump administration: Elon Musk bashing the president’s domestic policy bill.
It’s also nearly impossible to disprove it.
History suggests that arriving at actual proof of Trump’s theory is often besides the point for Trump. It’s about repetition and seeding doubt. And Wednesday’s action is clearly in line with that history.
