Much ink has been spilled on the topic of whether use of the autopen to sign President Joe Biden’s name to pardons, executive orders, legislation, and other documents invalidates the actions. But these analyses overly complicate and miss the key point: Was the document a forgery?

Many presidential acts, such as approving legislation, require a signed document to be effective. In 2005, the United States Department of Justice Office of Legal Counsel opined: “The President need not personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law. Rather, the President may sign a bill within the meaning of Article I, Section 7 [of the Constitution] by directing a subordinate to affix the President’s signature to such a bill, for example by autopen.”

Signing a piece of paper is not exercise of the power granted to the president; the signature is merely the manifestation and evidence that the president has exercised his power to take an action. No one would claim a president who broke his hand had to abdicate the presidency because he no longer could himself physically sign documents. The question, therefore, is not how the signature ended up on the page, but whether the president himself took the action evidenced by the signature and directed that the document be signed.

The Constitution grants certain powers, including the pardon power, exclusively to the president. All would agree that if a White House staffer typed up a “pardon” without the president’s knowledge — or with the knowledge of a president who lacked the mental capacity to understand the nature and import of such a document — and then forged the president’s signature thereto, the pardon unquestionably would be invalid. Use of the autopen is simply the mechanism by which the document was signed. The question remains whether the president was aware of its use and had the mental capacity to agree to the challenged act. So, the simpler way to frame the issue is: “Was this a forgery?”

Forgery is the act of making or altering a writing with the intent to defraud or deceive — generally to pass off a “fake” document as genuine. Did persons in the White House use the autopen to forge President Biden’s signature in order to defraud or deceive the nation into believing President Biden himself had taken action evidenced by the thus-signed documents?

While there is no generalized federal criminal forgery statute, 18 U.S.C. sec. 1001 makes it a federal crime punishable by five years in prison to create false statements in government records, and federal conspiracy and other charges may apply for forging a document to falsely assert a president has taken an action he has not. Regardless of criminality, “presidential” actions taken without the knowledge of the president are invalid because they are not the actions of the president. This is not rocket science, or difficult legal theory. If President Biden did not pardon a person, that person has not received a pardon regardless of whether there is a document titled “Pardon” that bears President Biden’s autopen signature.

There is nothing novel or remarkable here. Disquisition about the autopen is a red herring. The document is either a forgery or not — whether the forger used an autopen or his hand to sign President Biden’s signature. Indeed, the Biden administration’s defenders seem to focus on the autopen in an apparent attempt to deflect and obscure the key issue: Did the president of the United States exercise the powers given to him alone by the Constitution or did someone illegally usurp presidential power? If someone, or several people, used the autopen to forge documents so as to falsely claim the president took actions he did not in fact take, those actions are null and void and must be ignored.

John B. Daukas served as principal deputy and acting U.S. assistant attorney general for the Justice Department’s Civil Rights Division, 2020-21, and as Chief Counsel for Civil Issues on the Senate Judiciary Committee in 2023.