Long after President Trump’s term in office ends, there will be lawfare about what he has done. When the dust settles on his war against the drug lords, there will still be a lot of litigation on things such as the announcement he made on Friday that all things that were done by former president Biden via the “autopen” were cancelled.
Trump wrote on Truth Social that,
Any document signed by Sleepy Joe Biden with the Autopen, which was approximately 92% of them, is hereby terminated, and of no further force or effect. The Autopen is not allowed to be used if approval is not specifically given by the President of the United States. The Radical Left Lunatics circling Biden around the beautiful Resolute Desk in the Oval Office took the Presidency away from him. I am hereby cancelling all Executive Orders, and anything else that was not directly signed by Crooked Joe Biden, because the people who operated the Autopen did so illegally. Joe Biden was not involved in the Autopen process and, if he says he was, he will be brought up on charges of perjury.
How far back does that go? In 2024 alone, Biden signed 19 executive orders, granted 39 pardons and commuted about 1,500 sentences. In total, Biden “signed” 162 Executive Orders, 89 pardons and and 4,165 commutations. From what Trump wrote we have to conclude that he wants to wipe the slate clean of all Biden’s EOs, pardons, and commutations. That’s more pardons and commutations than any other president.
Trump excels at throwing everything up in the air and seeing how it settles to earth. He’s done it again with his Friday declaration.
Biden’s Executive Orders range from the first, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” to the last, “Adjustments of Certain Rates of Pay.”
In all these cases, it will be up to the Justice Department to prove, in the resulting lawsuits, that Biden signed them with the autopen and didn’t specifically approve each one.
How will they prove that?
Well, first off they don’t have to. The burden of proof will be on the plaintiffs. They’ll have to prove that Old Joe either signed the document in question or specifically authorized the use of the autopen for that purpose.
In defense, the Justice Department may be able to start with forensic evidence showing that Biden didn’t actually sign the documents in question. It may be that an autopen signature is different from an actual one. We don’t know if there is such evidence or how it can be derived. There may be videos showing which were — and were not — signed by Biden in person.
But that doesn’t conclude the inquiry. Lawsuits will go back and forth, and to the higher courts, about whether Biden knew and specifically intended that the EOs, pardons, and commutations and such were going to be effective.
Will Trump and the Justice Department try to re-imprison people who were pardoned or had their sentences commuted? If so, each of those people will be entitled to a trial on the circumstances surrounding the pardons and commutations. This is a huge mess for which lawyers will find employment for years to come.
It’s much less clear that each person — or class of people — affected would have the right to a trial on the question of Trump’s action cancelling Biden’s Executive Orders. Trump could have saved himself the effort by — as this column recommended — cancelling all of Biden’s Executive Orders by his own EO on the first day he resumed office.
A further problem is in that a future Democratic president who could (and probably would) cancel the defense of any or all of the lawsuits that are brought against Trump’s action, presuming that the litigation isn’t concluded by the time Trump leaves office (and presuming his successor, Heaven help us, is a Democrat.)
There are problems, too, for those challenging Trump’s order. How can they counter evidence that Biden was overcome with senility at the time he supposedly signed the documents? How could that Biden have actually signed them and knew what he was doing when he did?
These people cannot rely on Old Joe’s testimony. He’s reportedly too far gone into senility for that. Trump’s threat of a perjury indictment against Biden in the event of such testimony might be something to dissuade all involved to not try to obtain Biden’s testimony.
So where does that leave us? If the Justice Department tries to re-imprison those pardoned or had their sentences commuted, that will definitely lead to lawsuits to sustain the pardons and commutations.
Attorney General Pam Bondi and the Justice Department must have been consulted before Trump made his Friday declaration. How will they act to pursue it? And how will they sustain Trump’s erasure of all of Biden’s executive orders?
There are any number of other documents Biden signed with the autopen including presidential directives that are still secret. How will they be treated under Trump’s new order?
Trump excels at throwing everything up in the air and seeing how it settles to earth. He’s done it again with his Friday declaration.
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