Deja Vu All Over Again – Update for December 8, 2025

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TRUMP TRIES TO VOID BIDEN CLEMENCIES

I have previously reported that last Tuesday, President Trump wrote on his inaptly-named “Truth Social” that he was declaring an untold number of President Biden’s clemencies to be of “no further force or effect” because Trump said the proclamations had been signed with an autopen as opposed to being “directly signed by Crooked Joe Biden.”

(Trump’s reference to Biden as “crooked” has a certain ‘pot calling the kettle black‘ quality to it, but we’ll leave that alone for now).

Forgive me for reprinting the portions of this post you may have already read. I built on last Thursday’s content for LISA’s newsletter to federal prisoners and their families published last night, and it seemed to me that there was enough new content to warrant a partial repost. Like the great philosopher Yogi Berra said, “It’s deja vu all over again.”

Tuesday night, Trump ranted on Truth Social that he was voiding all pardons and commutations that were signed by Biden with an autopen:

“Any and all Documents, Proclamations, Executive Orders, Memorandums, or Contracts, signed by Order of the now infamous and unauthorized “AUTOPEN,” within the Administration of Joseph R. Biden Jr., are hereby null, void, and of no further force or effect. Anyone receiving “Pardons,” “Commutations,” or any other Legal Document so signed, please be advised that said Document has been fully and completely terminated, and is of no Legal effect.”

Trump has often claimed that Biden used the autopen, a mechanical device that allows signatures without a person using their hand, because of the former president’s physical and mental frailty. Biden issued 4,245 acts of clemency during his four years in office, more than any other US president since the start of the 20th century, according to Pew Research Center. Before leaving office last January, he issued several pardons — including for family members — and commuted sentences for about 1,700 drug offenders.

No one has reported whether Biden used an autopen to sign any of the pardons or commutations, but that has not deterred Trump from claiming he did.

Most of the clemencies were commutations rather than pardons. Biden only issued 80 individual pardons, but he did issue “pardons by proclamation” which affected entire classes of people. The pardons by proclamation included one for former military service members convicted of violating a ban on gay sex and people convicted of certain federal marijuana nontrafficking offenses.

David Super, a constitutional and administrative law professor at Georgetown University, told Government Executive last spring that “the Constitution does not require signatures for pardons. It simply says the president has the power to pardon.”

“So if President Biden wanted to simply verbally tell someone they’re pardoned, he could do that. It wouldn’t have to be in writing at all,” he said. “Administratively, of course, we want things in writing… but there’s no constitutional requirement.”

If Trump were to try to rearrest someone who received clemency in order to return them to prison, legal experts predict the actions would be unlikely to stand. “I can’t imagine the court saying that it wasn’t a valid pardon because of the autopen issue,” Stanford University Law School professor Bernadette Meyler told The Daily Signal. “Biden made statements regarding these pardons, so it would be hard to show that they weren’t a decision of the President.”

To reverse the pardons, DOJ would have to act, and the courts would have to resolve the question. “If Biden never authorized it, it’s an invalid pardon anyway,” Paul Kamenar, counsel for the National Legal and Policy Center, explained.

Ironically, Trump’s recent pardon of people “for conduct relating to support, voting… or advocacy for or of any slate or proposed slate of Presidential electors… in connection with the 2020 Presidential Election” is so vague and limitless that it could apply to thousands of people. In an Eastern District of Pennsylvania case of a man accused of voting both in Pennsylvania and Florida back in 2020 (he says he voted for Trump in both places), the defendant has moved to dismiss the indictment by claiming the pardon applies to him, too.  The Dept of Justice has argued in that case that it’s up to Attorney General Pam Bondi and Pardon Attorney Edward Martin to decide who, and which possible crimes, Trump actually meant to cover.

Politico reported last week that there’s neither historical nor modern precedent for a president to delegate his pardon power to subordinates on a pardon this vaguely worded. In fact, it is remarkably similar to what Trump has accused Biden of having done.

Other clemency issues will be more difficult to litigate if it means reincarceration or returning old penalties, said John Malcolm, director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation.

“This is totally unprecedented territory,” Malcolm told The Daily Signal. “Normally pardons and grants of clemency, for example, are not subject to challenge since a president’s pardon power is plenary.”

“Here, the issue will be litigated when Trump takes some action that runs contrary to what Biden did–such as seeking to reincarcerate someone who was pardoned or granted clemency or setting an execution date for one of the 37 death row inmates whose sentences Biden commuted–and then we’ll see what a court does,” Malcolm added.

Trump’s move is a key first step. “The bigger threat that President Trump has brought to the public’s attention is the idea of unelected staffers exercising power they don’t have,” Stewart Whitson of the Foundation for Government Accountability told The Daily Signal. “It could be at the behest of a well-funded organizations or even foreign funding pushing unelected bureaucrats to act.”

Newsweek, Trump Says All Pardons, Commutations Signed by Biden Autopen ‘Terminated’ (December 2, 2025)

Government Executive, Trump says he is voiding Biden executive actions signed with autopen (December 1, 2025)

Stanford Law School, Why Trump Can’t ‘Void’ Biden’s Pardons Because of Autopen (March 17, 2025)

Government’s Opposition to Defendant’s Motion to Dismiss the Indictment (ECF 23), United States  v. Weiss, Eastern District of Pennsylvania, filed November 28, 2025

Politico, DOJ claims it has the power to decide who gets Trump’s sweeping 2020 pardon (December 4, 2025)

Daily Signal, What’s Next After Trump Voids Biden Autopen Orders? (December 4, 2025)

~ Thomas L. Root