Alan Dershowitz Explains Why ‘We Will Never Know’ If Autopen Pardons Are Invalid

Attorney Alan Dershowitz said Monday that the American people may never know whether pardons issued by former President Joe Biden are invalid due to the use of an autopen to sign them.

President Donald Trump declared in a post on Truth Social early Monday morning that pardons issued by Biden to members of the House committee investigating the Jan. 6, 2021 riot at the Capitol were invalid due to the use of an autopen, a mechanical device that can replicate a stored signature. Dershowitz told viewers of “The Dershow” that if an autopen was used to sign a bill into law, the law would likely be invalid, due to language in the Constitution requiring the president to sign the bill into law. (RELATED: Alan Dershowitz Gives Props To Justice Alito For His Dissent In SCOTUS’ Trump Foreign Aid Ruling)

“I haven’t heard anybody mention this point, but it’s in the Constitution, so I am going to mention it. There’s a difference among documents that are signed or have to be signed by the president. Let’s say, for example, a bill. We remember all from civics one, yeah, a bill becomes law,” Dershowitz said. “When does a bill become law? When the president signs it or the president doesn’t sign it and vetoes it, when the veto is overcome by the votes, this, that, the other.”

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“OK, what does the Constitution say?” Dershowitz asked. “The Constitution is very clear that if the president approves the bill, quote ‘He shall sign it.’ He shall sign it, not an autopen, he shall sign it. That seems to strongly suggest he has to pick up a pen. There has to be a document. He has to put pen on paper and sign.”

White House Deputy Chief of Staff Stephen Miller told CNN host Kasie Hunt that Trump signed “every single executive order” during a Monday interview on “The Arena.” Dershowitz said there was “no comparable language” in the Constitution requiring a presidential signature when it came to pardons.

“Here’s what it says in the Constitution: [The] president shall have the power to grant… reprieves and pardons for offences against the United States. He shall have the power, and so there is an argument, don’t know whether it’s a valid one, but it’s an argument I’m certain has never been made before that could say that a president can exercise the power of granting a pardon without even writing anything,” Dershowitz said.

“All he can say is I hereby pardon you and, according to the Constitution, at least, if there’s a witness or if there’s this evidence of it, and the pardon is valid, but it still raises the question: He has the power to pardon. He has the power to pardon, not somebody else, and so he shall have the power to grant,” Dershowitz said. “So the question is: Did Biden actually exercise that power, or did somebody exercise it on his behalf? So that’s a valid question, aside from the auto pen, which I don’t think applies necessarily to the issue of pardons, because there’s no obligation, no requirement in the Constitution of signing anything, but he shall have the power, and so if it can be demonstrated that it wasn’t you who exercised that power, obviously it was you [who] exercised the power to pardon his son. We know that, but did he exercise the power to pardon all the January 6 congressional committee members, or was that somebody on his staff?” (RELATED: Alan Dershowitz Says Many ‘Improper’ Injunctions Against Trump Executive Orders Will Get Tossed)

Dershowitz said, though, there would be a significant obstacle to challenging the use of an autopen to sign pardons. The challenge would need to be brought by someone with legal standing to sue.

“Bottom line: If somebody challenges a law, a bill that was signed by an autopen, it’s a significant chance it might be validated. Of course, you have to have standing to challenge,” Dershowitz said. “The same thing, by the way, is true for a pardon. Who would have standing to challenge? Let’s assume the pardon was unlawful, is illegal. [The] person getting the pardon wouldn’t wanna challenge. Who would have standing to challenge an unlawful pardon? That’s a hard question. We don’t know the answer to that, and I suspect we will never know the answer to that.”

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