First off, if you ever needed proof that we here at Twitchy are ahead of the curve, this is it. We have been like this …
… ever since we learned of this story. Regular readers know that we have been questioning the validity of Biden’s pardons ever since he first pardoned his son. But the New York Times—and Jake Tapper’s co-author on ‘Original Sin’—just poured gasoline on this rising fire:
We have read the entire piece, and while the New York Times is clearly trying to do damage control, they are in fact making the situation worse—most likely because they don’t understand the legal ramifications of their own reporting. From the article:
In an interview with The New York Times, Mr. Biden said that he had orally granted all the pardons and commutations issued at the end of his term, calling President Trump and other Republicans ‘liars’ for claiming his aides had used an autopen to do so without his authorization.
So, ex-president Biden is coming out swinging. We are not only wrong for questioning whether or not he was competent and authorized every pardon and commutation. No, we are apparently liars, because he is claiming that somehow we knew for a fact he was totally competent and authorized every pardon and commutation but we are suggesting he didn’t anyway.
Which is ridiculous. Most of Republicans were by definition outsiders who didn’t actually know for a fact what was going on. We are simply people who saw how bad Biden had declined in a public way and asked the obvious questions.
The whole thing suggests what can be best described as ‘old man anger’—although frankly, it is not limited to old men. Anyone who has dealt with the elderly people for any stretch of time knows that when they show signs of mental decline and you point it out to them, they often get angry. It's tragic but familiar.
The article goes on to say that many documents have been turned over, particularly emails, to Congress and apparently the New York Times has access to them, but they feel that they are not getting the full picture:
The Times has reviewed several dozen of those emails, which discussed each of the major grants of clemency that were recorded by an autopen near the end of Mr. Biden’s term. But The Times has not seen the full extent of the emails, so it is impossible to capture the totality of information they contain or what else they might show about Mr. Biden’s involvement in the pardon and clemency decisions.
But those that were reviewed by The Times show that that the Biden White House had a process to establish that Mr. Biden had orally made decisions in meetings before the staff secretary, Stefanie Feldman, who managed use of the autopen, would have clemency records put through the signing device.…
At the end of his term, Mr. Biden reduced the sentences of nearly 4,000 federal convicts and pre-emptively pardoned politically prominent people he considered potential targets of Mr. Trump for criminal investigations.
Mr. Biden said in Thursday’s interview that he had his staff use an autopen for the warrants because he had granted clemency to so many people; the autopen was used, in all, on 25 pardon and clemency warrants from last December to January. Some of the individual warrants included large batches of names because they all fell into the same broad policy category, like reducing the sentences of nonviolent drug offenders who met standards Mr. Biden established.
Mr. Trump and his congressional allies are focused in particular on trying to delegitimize Mr. Biden’s final batch of clemency actions.
That set extended pre-emptive pardons to many people Mr. Trump perceives as enemies, including Gen. Mark A. Milley, Dr. Anthony Fauci and members and staff of the House committee that investigated the Capitol riot.
It goes on to quote Biden as claiming that he feared that those people might face politically motivated criminal investigations, which has to be the worst case of projection we have seen in a while. As we have often observed, a huge part of the fear Democrats have about a second Trump term is that he might be as awful to them as they were to Trump.
Then the article says:
On Oct. 30, 2024, the emails reviewed by The Times show, Mr. Biden’s White House counsel, Ed Siskel, notified senior staff to expect a flood of lobbying for clemency grants at the administration’s end and laid out a process for an orderly review.
The final step, he wrote: ‘The president makes the final decision on the final pardon and/or commutation slate.’
Now, let’s talk a little about the law. This author wrote a VIP piece discussing the legal issues presented by Biden’s potential incompetency in the context of pardons, called ‘The Question Isn’t Whether Trump Can Revoke Biden’s Pardons. It’s Whether They Were Issued at all.‘ In the piece, we made several points:
First, only the president can issue a federal pardon. This is a duty he cannot delegate.
Second, an autopen can be used to do any act that requires the president’s signature, but only if the president consents to his signature being placed on the document.
Third, if that consent wasn’t given, then as a matter of Constitutional law no pardon was issued.
So if Trump declares one of Biden’s pardons to be null and void for that reason, he isn’t revoking that pardon. He is saying none was issued in the first place.
(And for the record, no president can revoke a pardon, once properly issued.)
That prior piece goes into more detail, but that is the law. And that initial email saying that ‘The president makes the final decision on the final pardon and/or commutation slate’ suggests that they understood this point: No pardon could issue without Biden’s consent.
So bluntly, the issue isn’t just the use of the autopen. The issue is consent, and we are wondering if he really gave his consent. That line about final approval suggests that they knew they needed his consent, but did they actually follow that procedure?
Back to the article:
Over the next three months, Mr. Biden made four major sets of clemency actions that were recorded with an autopen. The emails reviewed by The Times included discussions about all four batches.
Three applied to broad categories of people. He reduced the sentences of inmates sent to home confinement during the pandemic and certain nonviolent drug offenders.
And he turned the death sentences of 37 of the 40 federal inmates on death row to life without parole. That echoed the criteria he had used in 2021 when he imposed a moratorium on carrying out federal executions but excluded death row inmates convicted of terrorism or mass-murder hate crimes. …
The fourth set was announced on Mr. Biden’s last day. They included pre-emptive pardons for members of his own family and various people who have drawn Mr. Trump’s ire. …
The Times seems to be confusing clemency with pardons. Clemency is a reduction of sentence. A full pardon on the other hand is more or less the legal equivalent of a being tried and being found not guilty. We are glossing over some nuances, but that is the gist of it. Both clemencies and full pardons are both considered to fall under the pardon power.
[The emails] also show that use of the autopen was managed by Mr. Biden’s White House staff secretary, Ms. Feldman. She wanted to receive written accounts confirming Mr. Biden’s oral instructions in the meetings before having it used to produce the warrants recording the clemency actions, the emails show.
The aides referred to those written accounts of meetings at which Mr. Biden delivered oral decisions as ‘blurbs.’ The accounts were drafted by aides to the senior advisers who had participated in the key meetings — like Mr. Biden’s chief of staff, Jeffrey D. Zients, and Mr. Siskel.
The assistants who drafted the blurbs were not themselves in the room with Mr. Biden, according to the lists of meeting participants. The emails imply that Mr. Siskel and Mr. Zients relayed what Mr. Biden had said to the assistants, who then documented it.
The assistants circulated the drafts to Mr. Siskel, Mr. Zients and other meeting participants before sending the final versions to Ms. Feldman, again copying the meeting participants.
For the earlier sets of large-scale clemency actions, the process sometimes took place several days after the meeting with Mr. Biden. For two crucial meetings at the end of his term, it took place on the same days.
It goes on to discuss drafts of official statements justifying the pardons or clemencies, which is not relevant to this, but we note that with these statements Biden allegedly gave final approval.
And then here’s where things start to get bad for anyone depending on these pardons/commutations:
Mr. Biden did not individually approve each name for the categorical pardons that applied to large numbers of people, he and aides confirmed. Rather, after extensive discussion of different possible criteria, he signed off on the standards he wanted to be used to determine which convicts would qualify for a reduction in sentence.
Even after Mr. Biden made that decision, one former aide said, the Bureau of Prisons kept providing additional information about specific inmates, resulting in small changes to the list. Rather than ask Mr. Biden to keep signing revised versions, his staff waited and then ran the final version through the autopen, which they saw as a routine procedure, the aide said.
By contrast, Mr. Biden said in the interview, he discussed each of the high-profile individuals with aides. He used General Milley as an example.
Do you see what is missing, folks? The suggestion Biden actually knew who was on the final list of people pardoned.
As for high-profile pardons, covering people like Milley and almost certainly Fauci:
Mr. Biden completed the list of high-profile clemency decisions over two meetings, the emails show. One, on Jan. 18, included Mr. Zients, Mr. Siskel and another aide, Bruce Reed. Another, on the evening of Jan. 19, his final night as president, was with Mr. Siskel, Mr. Reed and three other top aides, Anthony Bernal, Steve Ricchetti and Annie Tomasini.
The emails show that Mr. Biden added the pre-emptive pardons for his family at the Jan. 19 meeting. They also suggest that he changed some of his thinking.
The summary of the first meeting said Mr. Biden had decided to grant a pardon to Don Siegelman, a former Democratic governor of Alabama who was convicted in 2006 of federal corruption charges. The summary of the second said the president had decided to rescind his approval of a pardon for Mr. Siegelman. …
At the Jan. 19 meeting, which took place in the Yellow Oval Room of the White House residence, Mr. Biden kept his aides until nearly 10 p.m. to talk through such decisions, according to people familiar with the matter.
The emails show that an aide to Mr. Siskel sent a draft summary of Mr. Biden’s decisions at that meeting to an assistant to Mr. Zients, copying Mr. Siskel, at 10:03 p.m. The assistant forwarded it to Mr. Reed and Mr. Zients, asking for their approval, and then sent a final version to Ms. Feldman — copying many meeting participants and aides — at 10:28 p.m.
Three minutes later, Mr. Zients hit ‘reply all’ and wrote, ‘I approve the use of the autopen for the execution of all of the following pardons.’
So apparently it was not Joe Biden giving final approval as they said originally. Apparently, it was Zients.
And to be fair in our analysis, we see this line:
Mr. Biden granted Hunter Biden a full pardon in December 2024. It was the only clemency warrant in that period that Mr. Biden signed with his own hand.
So, barring any surprising factual revelation, there is only one way to challenge the Hunter Biden pardon. You see, it takes more than saying ‘yes’ to consent. You also have to have the legal capacity to consent. Most adults have it most of the time, but if a person suffers from a significant enough handicap, they can’t consent. So if Trump wanted to render that pardon a nullity, they would have to show that when Joe Biden put pen to paper, he lacked the legal capacity to consent due to his cognitive decline—and we have been raising that possibility since Hunter got his pardon. We’re not saying that is definitely the case—this author doesn’t know—only that this is likely the only way the Trump administration can undermine the Hunter Biden Pardon.
Meanwhile with the pardons of other 'high profile' people, the New York Times’ own coverage raises serious doubt as to whether or not any pardon was issued for that group, because they don’t indicate that Biden gave final approval.
As for the ‘categorical’ groups, that is more complicated. Presidents can and do issue categorical pardons. For instance, Jimmy Carter pardoned thousands of people who dodged the draft and did so without naming any specific people at all:
We will quote from part of that pardon:
Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Jimmy Carter, President of the United States, do hereby grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, restoring to them full political, civil and other rights.
The pardon goes on to make categorical exceptions to that group, but you get the idea. None of the pardon recipients are named individually—they are simply described as a class with certain criteria, with exceptions based on other criteria. And if Biden just did that, the ‘categorical pardons’ would have been just fine.
But, instead, the Biden administration didn’t pardon categories—they pardoned specific people that allegedly met Biden’s criteria. For instance, you can see one such list of many, many clemencies at the link:
So, he commuted the sentence for a long list of people. But by the New York Times’ own reporting, Biden didn’t seem to approve of who was actually listed. We will quote what they wrote again:
Even after Mr. Biden made that decision, one former aide said, the Bureau of Prisons kept providing additional information about specific inmates, resulting in small changes to the list. Rather than ask Mr. Biden to keep signing revised versions, his staff waited and then ran the final version through the autopen, which they saw as a routine procedure, the aide said.
So basically, all those people saved from death row? Now, Trump has grounds to argue that their sentences were not commuted. The New York Times might have been trying to run interference for Biden, but they seem to have actually made it much, much worse.
Not that this article means that these pardons and commutations are definitely rescinded. This kind of newspaper article is unlikely to even be used as evidence when a court examines this issue—and it is increasingly likely that a court will examine this issue. But if the New York Times’ reporting can be verified by the Trump administration, those pardons and commutations would be in danger.
We won’t go through many reactions, but we think a few are in order:
The article doesn’t 100% say that, but when they talk about high-profile pardons, it’s hard not to think Fauci is on that list. So it’s true to say they are almost certainly talking about Fauci, but it is not 100% verified.
We will remind you that Bailey had previously sent a letter to the Department of Justice asking for an investigation of Biden’s competency, which we discussed here.
Should be an interesting discussion on CNN. Really, whatever CNN is paying Jennings, they should double it.
Finally, at the bottom of our piece we will have one of our usual blurbs asking people who are not VIP members to consider becoming VIP at a discount. We don’t want to brag, but … okay, we want to brag. We were ahead of the curve on this, and if you want to learn about issues before they break into the mainstream, consider purchasing a VIP membership, so you can be ahead of the curve, too. Or if you are already a member, then when it is time to renew, maybe you still want to be ahead of the curve? It's just something to consider.
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