The “drip, drip, drip” just got quite a bit louder. In an interview with the New York Times, Joe Biden admitted not making the actual decision on every pardon and grant of clemency.
Of course, that’s not how Biden himself framed things.
“I made every decision,” Mr. Biden said in a phone interview on Thursday, asserting that he had his staff use an autopen replicating his signature on the clemency warrants because “we’re talking about a whole lot of people.”
However, elsewhere in the interview, Biden also acknowledged that he did not personally authorize every individual’s pardon or grant of clemency.
Well, first of all, there’s categories. So, you know, they aren’t reading names off for the commutations for those who had been home confinements for, during the pandemic. So the only things that really we read off names for were, for example, you know, was I, what was I going to do about, for example, Mark Milley?
Even the New York Times is compelled to acknowledge that it is not clear how much Biden was involved in decisions to wield the Presidential pardon power.
The full picture of what Mr. Biden did on pardon and clemency decisions, and how much he directed those decisions and the actions of his staff, including the use of the autopen, may come down to tens of thousands of Biden White House emails that the National Archives has turned over as part of the investigation by the Trump White House and the Justice Department. Those emails contain keywords like “clemency,” “pardon” and “commutation” from November 2024 through Jan. 20, 2025, according to people familiar with the matter, speaking on the condition of anonymity to discuss a sensitive issue.
The Times has reviewed several dozen of those emails, which discussed each of the major grants of clemency that were recorded by an autopen near the end of Mr. Biden’s term. But The Times has not seen the full extent of the emails, so it is impossible to capture the totality of information they contain or what else they might show about Mr. Biden’s involvement in the pardon and clemency decisions.
This is a problem, because the text of Article II, Section 2 of the Constitution establishing the pardon power does not give any indication the power can be delegated.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Biden’s pardons are unique in that even with his large blocs of pardons and grants of clemency they are implemented by naming specific individuals1.
That is a notable departure from Presidential precedent. Most notably, when President Ford issued conditional clemency to Vietnam era draft dodgers he did so via a Presidential Proclamation and Executive Order 118032. When President Carter expanded that to a complete amnesty he also utilized a Presidential Proclamation and Executive Order 119673.
Even President Trump, when pardoning the J6 protesters4, did so via Presidential Proclamation 10887.
The Executive Order and/or Presidential Proclamation is the established mechanism for pardoning people by “categories”. It does not require an exhaustive list of names and only a single signature is required.
The Biden White House consciously chose not to follow established precedent—and may have invalidated a number of pardons as a consequence.
Bear in mind that the Bush-era memorandum opinion of the White House Office Of Legal Counsel is quite clear that the decision to sign cannot be delegated.
We do not suggest that the President may delegate the decision whether to approve[]” and “sign” a bill.U.S. Const. art. I,§ 7, cl. 2. It has long been the view of the Executive Branch that the President may not delegate this decision.
As the Vietnam-era clemency grant and amnesty given by Presidents Ford and Carter demonstrates, there is nothing untoward about a President granting pardons or clemency to a broad category of individuals. President Trump did exactly that with respect to the J6 protesters.
However, the Biden Administration established categories for clemency grants and pardons, and then Biden’s staff decided what names fit within those categories. Specific pardons were then issued to those named individuals—which is to say Biden’s staff decided who would receive a pardon or grant of clemency.
That is not how the Constitution articulates the pardon power.
Arguably, at least some of the pardons “issued” by Joe Biden are not Constitutionally valid.
This also confirms that in at least some instances people other than Joe Biden were deciding that official documents should be signed. The very thing that Neera Tanden could not confirm did not happen demonstrably did happen for at least some pardons and grants of clemency.
With a growing body of evidence challenging Joe Biden’s mental competency while he was in office—a body of evidence his own physician was loathe to confront, and so invoked his Fifth Amendment rights against self-incrimination—confirmation that people besides Joe Biden were making signing decisions throws suspicion on the whole corpus of Joe Biden’s Presidential acts.
How many of Biden’s executive orders and pardons are Constitutionally valid?
We can no longer assume that we know.
Biden, J. Commutations Granted by President Joseph Biden (2021-2025). 9 July 2025, https://www.justice.gov/pardon/commutations-granted-president-joseph-biden-2021-2025.
President Ford, G. Executive Order 11803—Establishing a Clemency Board to Review Certain Convictions of Persons Under Section 12 or 6 (j) of the Military Selective Service Act and Certain Discharges Issued Because of, and Certain Convictions for, Violations of Article 85, 86, or 87 of the Uniform Code of Military Justice and to Make Recommendations for Executive Clemency with Respect Thereto. 16 Sept. 1974, https://www.presidency.ucsb.edu/documents/executive-order-11803-establishing-clemency-board-review-certain-convictions-persons-under.
President, J. Executive Order 11967—Executive Order Relating to Proclamation of Pardon. 21 Jan. 1977, https://www.presidency.ucsb.edu/documents/executive-order-11967-executive-order-relating-proclamation-pardon.
President Trump, D. Proclamation 10887—Granting Pardons And Commutation Of Sentences For Certain Offenses Relating To The Events At Or Near The United States Capitol On January 6, 2021. 20 Jan. 2025, https://www.whitehouse.gov/presidential-actions/2025/01/granting-pardons-and-commutation-of-sentences-for-certain-offenses-relating-to-the-events-at-or-near-the-united-states-capitol-on-january-6-2021/.
People can complain about The Orange Man all they want, but this Biden presidency is going to go down as the worst in modern history. Absolutely unbelievable the stuff they pulled off as normal, no big deal, don’t believe your eyes/ears.
Peter, do you know what the steps for the Trump administration to take are? That is, does Bondi begin investigating, then Congress has to act, or what?