University of St. Thomas School of Law Professor Mark Osler spoke to NPR host Ailsa Chang on “All Things Considered” about the House Oversight Committee’s call for an investigation into President Biden's executive actions signed by autopen.
From the conversation:
Chang: ... And just to remind everyone, this is a Republican-led committee. What do you make of the argument that they lay out in this report about Biden’s cognitive decline and the permanence of these preemptive pardons?
Osler: I’m not an expert on cognition, but I am an expert on clemency, and I can tell you that the Constitution doesn’t make any requirement whatsoever as to how a pardon or a commutation is going to be put into writing or issued at all. And we’ve seen a variety of methods used over the years. In 2005, the Office of Legal Counsel provided the president with advice that the president could use an autopen to sign bills – obviously one of the most important things the president is going to sign. And since then, presidents have used autopens for a wide variety of things. ...
Chang: Well, then – OK – say you’re a person who did receive a pardon from President Biden. What would you advise that person to do to protect themselves legally now from having that pardon reversed or somehow invalidated during the Trump administration?
Osler: There’s really not that much that they can do. Again, I think most people who have studied this would be shocked if a pardon was overturned. One of the things that I really fear that could happen with this investigation and some of the conclusions that they seem to want to reach is you have 37 people who received a commutation of their death sentence by President Biden. And I would really think it would cause a constitutional crisis if President Trump moved to execute those people despite that commutation of the death sentence. But going forward, I hope that pardons aren’t undermined. They’re under enough stress as they are.
