The Question Isn’t Whether Trump Can Revoke Biden's Pardons. It’s Whether They Were Issued at all

As regular readers know, over a week ago, Trump issued this statement via his TruthSocial account:

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…
— Donald J. Trump Posts From His Truth Social (@TrumpDailyPosts) March 17, 2025

The cut off text read:

In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime. Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!

Mind you, this is from a Twitter/X account that mirrors what Trump said on TruthSocial, which I am using just because TruthSocial can be a headache to embed posts from.

And readers know that not only did I cover that news when it dropped, but I have been arguing that some or all of Joe Biden’s actions as president could potentially be void due to incompetence.

But as I watched the reaction to this announcement, it became clear that people fundamentally didn’t understand what was happening. Let me share a few examples and maybe you can see what the problem is?

A disturbing post from Donald Trump on Truth Social last night
No, a president cannot undo a previous administration's pardons. The Constitution gives presidents the power of pardon with no restrictions.
Trump wants to be a dictator. pic.twitter.com/hTlRdkcW64
— Georgie Porgie 🌻🇺🇦 🟦 (@g_berish) March 17, 2025

At 12:35 am ET, the president decreed that he was nullifying President Biden’s preemptive pardons of members of the January 6 committee, an assertion of a power the Constitution does not bestow. pic.twitter.com/S7ObJorpKx
— Jake Tapper 🦅 (@jaketapper) March 17, 2025

The problem with all of them is this. It is true that if Biden actually issued those pardons while serving as president, there is nothing anyone can do to revoke them.

But the question is whether or not Biden actually issued those pardons.

Let’s set out a hypothetical.

Imagine if I wrote out a document where I put the word 'pardon' at the top and it read something like this:

I, Aaron Walker, hereby pardon Dzhokhar A. Tsarnaev, better known as the Boston Marathon Bomber, for all federal crimes.

Then imagine further I actually sign this thing and then send it to his lawyer, to be delivered in prison.

So then… Tsarnaev walks free?

OF COURSE NOT. Why not? Because I am not and never have been the President of the United States—indeed, I have never held any government job outside of internships.

So, I can call that document a 'pardon' all I want, but as far as the law is concerned, my 'pardon' is not a pardon at all. It has no legal force.

You probably know intuitively that Article II, Section 2 of the Constitution says that

The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Some have said that the president’s power to pardon is unlimited, but that’s not strictly true. For instance, by the plain text of the Constitution, the president cannot pardon anyone from being impeached. If J.D. Vance committed a high crime or misdemeanor, was impeached and facing likely conviction in the Senate, then there’s nothing Trump could do to stop that consequence: He could only pardon him to prevent future administrations from going after him through criminal prosecution.

Likewise, the plain text of that provision limits this to 'offences against the United States' meaning federal crimes. That means that Trump cannot pardon a person to protect them from a federal civil suit, or a state criminal case based on an alleged violation of state criminal laws—although that power does include the ability to pardon a person for crimes committed in federal territories such as the District of Columbia.

And while it is not explicit in the text, a president can only pardon a person for past conduct. Trump cannot issue a pardon to Elon Musk, right now, pardoning for any crimes he might commit between now and January 19, 2029 when Trump’s term will end.

But at the same time, the plain text also doesn’t allow for Trump to delegate that power. Even if I worked for the federal government, Trump could not give to me the right to issue pardons even if he wanted to. In other words, the only person who can pardon anyone right now is Trump. Of course, it seems likely that if Trump had to temporarily make J.D. Vance acting president—as is sometimes done when a president undergoes a medical procedure that incapacitates him—that Vance would have the power to pardon. But that is only because he would be the acting president under the Twenty-Fifth Amendment. I’m not aware of any vice president who has attempted to do that, but I read the Constitution as making that possible. But only the acting president can do that, not some person who has the power delegated to him or her.

So, let’s change up my hypothetical. Let’s imagine that I was Trump’s Chief of Staff. And for some reason, I decided that Dzhokhar A. Tsarnaev really, really deserved to be free. (This is truly a hypothetical, because I actually think he deserves to fry.) So, in this hypothetical, I wrote out an alleged pardon, saying

I, Aaron Walker, Chief of Staff to President Trump hereby pardons Dzhokhar A. Tsarnaev for all federal crimes.

And then I sign it, and deliver it to Tsarnaev’s lawyer. So, does that mean he is pardoned? Does he get to walk out of prison?

OF COURSE NOT, because even in that hypothetical I am not the President or acting president. I’m just a guy Trump hired.

And the thing to get is in that hypothetical is that when Trump finds out and disavows the pardon, he isn’t revoking the pardon. He would be saying that, as far as the law is concerned, no pardon was issued.

And the answer doesn’t change if I claimed to issue a pardon and pretended to issue it as Trump himself. In other words, imagine if I wrote the following in the body of the 'pardon:'

I, Donald Trump, President of the United States hereby pardons Dzhokhar A. Tsarnaev for all federal crimes.

In that hypothetical, even if I putTrump’s signature on it via autopen (but without Trump’s consent), that wouldn’t change things, either. The fact that I am putting Trump’s name and signature on it (without his consent) doesn’t suddenly make it a valid pardon under the pardon clause, any more than if I used my own name.

Imagine further in that hypothetical that I delivered the pardon to Tsarnaev’s lawyer. In that case, I might cause more chaos in our system. That lawyer might go to the prison with the alleged pardon, and he might even convince the warden to let Tsarnaev go.

But at any time, Trump would have the right to say that the pardon was null and void. And that would not be Trump revoking a pardon. He would be saying that no pardon was issued in the first place. And he would be right.

(And, in that scenario, there is a good chance that I would actually be charged with some kind of counterfeiting crime.)

Honestly, I swear that the majority of people criticizing Trump’s TruthSocial post didn’t read past the first sentence, he explicitly said he believed Biden’s pardons were not issued with his knowledge or consent. Indeed, I was arguing with a guy online about it, who took four days to come back to me and still managed to ignore the text of Trump’s TruthSocial post:

Again, the OP is about Trump’s post on TruthSocial. Here’s what it literally says:

> In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew…
— (((Aaron Walker))) (@AaronWorthing) March 22, 2025

"OP" refers to the original post. The cut off text:

> ... He knew nothing about them, and the people that did may have committed a crime.
Seriously did you stop reading after the end of the first sentence? Or are you just a liar?
Moron or liar? Pick one

People claiming that Trump’s statement is wrong is focusing on the wrong issue. It’s not just the use of an autopen. It is the use of an autopen without the President’s consent. Seriously, I can’t tell you how many people missed this simple point:

Right, what are the last four words of that paragraph?
— (((Aaron Walker))) (@AaronWorthing) March 17, 2025

Indeed, a lot of people started citing an old Office of Legal Counsel opinion from the Department of Justice to try to disprove Trump’s argument:

It's a tempting argument, but DOJ has addressed this in a fairly comprehensive way. Probably a losing argument. https://t.co/bh98pSBwCq https://t.co/DJIk9C7mkv
— Titan Law NY (@TitanLawNY) March 17, 2025

Now, first, this is just essentially one lawyer’s writing. It does not have the force of law. It tends to be learned analysis that one should take seriously on those terms, but it's not the same as, say, a Supreme Court opinion, or even the opinion of a lower court judge.

Still, while I haven’t checked all of their citations, I basically agree and what it actually says can be summed up with concluding paragraph:

For the foregoing reasons, we conclude that the President need not personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law. Rather, the President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President’s signature to such a bill, for example by autopen.

(Boldface added.) So rather than refuting Trump’s argument, that opinion supports it. Yes, someone can write the pardon for Trump. Yes, they can even use the autopen to put the signature on it. But it is not a pardon without Trump’s consent. Indeed, the author of this opinion used the stronger word 'direction' rather than consent.

So, as a practical matter, this means that it is the policy of the Trump administration that the Biden pardons are meaningless. That means that the law enforcement officers working for him (such as in the FBI) can investigate crimes covered by these alleged pardons as if the pardons don’t exist—because as far as this administration is concerned, they don’t exist. Likewise, his prosecutors should prosecute if otherwise justified. Indeed, I wonder if it is too late to overturn any decision dismissing any case pending against Hunter Biden.

But in the end, Trump will have to get the judiciary to go along with it. Imagine this easy-to-imagine hypothetical. Imagine if they indict Hunter Biden for conduct he engaged in during the period coverd by the alleged pardon. Once the indictment is issued, Hunter is likely to move to dismiss it on the basis of the alleged pardon. And the Trump administration is likely to argue that the pardon was never properly issued because it was not made with the consent of President Biden.

I think that when the courts are forced to confront the ultimate issue—whether or not Biden consented to the use of the autopen—they won’t say that a pardon issued in a president’s name without his or her consent is still valid. They will say exactly what I have been saying: If the Trump administration can prove the President didn't consent to the pardon, then it is no pardon at all.

But Trump (or more likely, his subordinates) would still have to prove that lack of consent.

Will he be able to do that? Or will it turn out that he is just blowing smoke? Well, we won’t know until the Trump administration tries to prosecute a person pardoned by Biden. But I don’t think this legal theory would be dismissed out of hand, and certainly not as shallowly as so many people have done.

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