WILMINGTON, Delaware., Dec 11 (Reuters) – U.S. President Donald Trump has claimed, without evidence, that some actions by former President Joe Biden were invalid because he signed them using an autopen, including appointments to the Federal Reserve’s Board of Governors.
Below is a look at the controversy and legality of the device.
WHAT IS AN AUTOPEN?
It is a mechanical device that replicates a signature with a pen or other writing device and is used by government officials, celebrities, business leaders and members of Congress. It allows them to create a large volume of personalized correspondence without actually signing their name repeatedly.
Thomas Jefferson, who became U.S. president in 1801, used an early form of an automated writing device to simultaneously create multiple letters in his own handwriting.
Presidents have used the autopen to affix their signatures to documents for decades. During a 2011 trip to France, Barack Obama became the first president to use it to sign legislation needed to extend provisions of the Patriot Act just as they were set to expire.
WHAT HAS TRUMP SAID ABOUT BIDEN’S USE OF AUTOPEN?
Since Trump returned to the White House he has focused on Biden’s use of the autopen to highlight questions about his predecessor’s health and competency.
In June, a Justice Department official told staff that the agency was investigating the clemency and pardons granted by Biden to members of his family, political allies and death row inmates in the final days of his presidency. The investigation focused on whether others were using Biden’s autopen signature without approval.
Biden told the New York Times he had directed his staff to use the autopen because of the large number of clemency orders.
While no evidence emerged to suggest that Biden did not intend to issue the orders, Trump said earlier this month he is terminating Biden pardons that were recorded using an autopen. Trump also said that Biden used the autopen to appoint Federal Reserve governors.
HAS USE OF THE AUTOPEN DRAWN SCRUTINY IN THE PAST?
During the administration of President George W. Bush, Defense Secretary Donald Rumsfeld acknowledged he had used an autopen to sign letters to families of troops killed in combat. Once it came to light, he pledged to personally sign the letters.
Republicans in 2011 criticized Obama’s use of the autopen to sign the Patriot Act legislation and said it could be challenged in court, although it does not appear any case was brought.
WHAT IS THE LAW GOVERNING THE USE OF AUTOPEN?
The Constitution says if a president approves of a bill passed by Congress “he shall sign it.”
In 2005, the Office of Legal Counsel in the Justice Department provided an authoritative review of the meaning of “to sign” and determined that it was commonly understood by the founding fathers that a person could assent to an agreement by directing a subordinate to apply the person’s signature or the person’s seal. What mattered was that the signature reflected the person’s intent, not whose hand held the pen, the OLC determined.
In 2001, a group of businesses challenged President Bill Clinton’s appointment of a member to the International Trade Commission, which was recorded using an autopen. Although the device was only a small part of the case, the court found that Clinton had clearly communicated his wish to make the appointment and the autopen had no bearing on the legality of the appointment.
COULD TRUMP INVALIDATE BIDEN PARDONS AND FED APPOINTMENTS?
There is no legally prescribed format for issuing pardons and using the autopen does not invalidate them, according to legal experts.
A pardon could possibly be invalidated if it came to light that a Biden aide used the autopen without authorization and Biden did not intend to issue the pardon, according to legal experts.
It seems even less likely that Trump could challenge the appointment of Federal Reserve governors, according to legal experts. The governors are nominated by the president and confirmed by the U.S. Senate, making it hard to argue the process took place without Biden’s knowledge.
(Reporting by Tom Hals in Wilmington, Delaware;Editing by Noeleen Walder and Matthew Lewis)
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