Neera Tanden's Testimony Sparks Constitutional Alarm
Who Was Really Running the White House?
Against the media cacophony that has been the Twelve Day War, a small bit of testimony before Congress has created a true “Constitutional crisis”—the very real possibility that the Presidential Autopen was used to sign Executive Orders, Pardons, and perhaps even legislation without clear Presidential approval.
Neera Tanden, former Director of the White House Policy Council as well as a self-described “staff secretary”, claimed in her opening remarks on Tuesday that she was the one who “directed” autopen use.
Neera Tanden, who served as director of the White House Domestic Policy Council, explained in her opening remarks Tuesday that she was given authority to wield the autopen. She said she “was responsible for handling the flow of documents to and from the president” and was authorized to direct autopen use from October 2021 to May 2023 when she was serving as staff secretary and senior adviser to Biden.
What does she mean by “authorized to direct autopen use”? The answer is not merely problematic, but Constitutionally critical.
Readers will recall that we were heading towards exactly this point three weeks ago, when President Trump ordered an investigation into whether or not Joe Biden actually authorized use of the autopen to sign Presidential documents.
While the use of the autopen itself is arguably legal, one requirement has never been in dispute: the President has to actually decide to sign a document and then order the autopen’s usage.
The official stance of the White House Office of Legal Counsel has for nearly 20 years been that Autopen signatures are valid when affixed upon direction by the President. However, the memo establishing that stance also is clear that the President cannot delegate the decision whether or not a signature should be so affixed.
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.
If Joe Biden did not explicitly authorize the use of the Autopen—even by a perfunctory “go ahead and sign it” verbal declaration—then it is an open question whether he could have actually made the decision that a bill, executive order, or pardon should be signed.
This requisite decision-making by the President is where Tanden's testimony runs into serious trouble: she cannot establish affirmatively that Joe Biden actually authorized autopen usage.
But Tanden, who said she had limited interactions with Biden, described an approval process that left her in the dark about who specifically was giving final approval on the decisions to use the automatic signature tool, sources told Fox News.
Tanden testified that to get approval for the use of autopen signatures she would send decision memos to members of Biden's inner circle. However, she added that she was not aware of what actions or approvals took place between the time she sent the decision memo and the time she received it back with the necessary approval.
Remember, while the President can delegate affixing his signature to a document, the well-established position of the OLC is that the President cannot delegate the decision to sign or not sign a document. That decision must be made by the President and only by the President.
Neera Tanden charted a document flow and approval process that apparently does not establish beyond any and all doubt that Joe Biden was in fact making those decisions. Certainly the flow that she described creates the possibility that someone in Biden’s inner circle could pre-empt Biden and send decision memos back down to Tanden as “approved”.
This document flow would be suspicious enough even on its own. In light of what Jake Tapper and Alex Thompson have stated in their book Original Sin, Tanden’s testimony is potentially damning.
The more convoluted a decision process is, the less likely a dementia patient is going to be able to navigate it successfully. This is the cruel reality of dementia.
Tanden establishes a White House decision process that apparently quite deliberately put multiple layers of separation between Joe Biden and Joe Biden’s signature, and provides no assurance that Joe Biden was the one making the actual decisions.
If someone other than Joe Biden was making the decisions about which bills and documents should be signed, how severe is that? Consider some of the possible offenses involved:
“Conspiracy To Commit Offense Or To Defraud United States”1:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
A deception of about whether the elected President is actually making decisions on whether to sign legislation is indisputably a fraud against the United States.
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same
Every voting American’s rights were indisputably violated by effectively stripping Joe Biden of his Presidential power.
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
Fraudulently asserting Presidential authority is definitely hindering and delaying the execution of the law of the United States.
Neera Tanden’s testimony by itself does not prove that specific staffers committed these or other offenses. Neera Tanden’s testimony, coupled with Tapper and Thompson’s book, begins to build a pretty damning case that does prove exactly this.
We have never had the President’s signature potentially co-opted in this fashion. The Supreme Court is silent on the matter. The Constitution is silent on the matter.
The Democrats got a respite from the Biden Dementia Narratives during the Twelve Day War. Now Biden’s dementia is putting itself back on the front page, as if it had never left.
This will not be a fun summer for the Democrats. The “drip, drip, drip” is getting louder.
Oh my gosh!!! She needs to be prosecuted too then! WOW!
Literally, WTH!