The Constitutional Invalidity of Biden’s Auto-Penned Pardons Under United States v. Throckmorton
I. Introduction
President Donald J. Trump’s recent statement raises serious constitutional and legal concerns regarding President Joe Biden’s use of the Autopen to issue pardons. Specifically, President Trump argues that these pardons are void because they were not personally reviewed, signed, or authorized by Biden himself. This claim finds support in foundational constitutional principles and judicial precedent, including the Supreme Court’s ruling in United States v. Throckmorton (1878), which establishes that fraud vitiates all transactions.
This paper analyzes the constitutional and legal grounds for voiding such pardons under originalist principles, the non-delegable nature of the presidential pardon power, and the application of Throckmorton to executive fraud.
II. The Pardon Power and Its Constitutional Limitations
The presidential pardon power derives from Article II, Section 2, Clause 1 of the U.S. Constitution:
“[The President] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
This power is broad but not unlimited. The Founders understood the pardon as a personal act of executive mercy, which inherently requires the President’s direct exercise of judgment. The Supreme Court has repeatedly emphasized the necessity of the President’s personal involvement in pardons:
In Ex parte Garland (1866), the Court held that a pardon is an act of grace exercised by the President himself.
In Burdick v. United States (1915), the Court reaffirmed that a pardon must be accepted knowingly and voluntarily, implying that the grantor (the President) must likewise act knowingly and voluntarily.
If Biden neither reviewed nor authorized the pardons, then they are constitutionally defective. The Constitution does not permit the delegation of core executive powers, especially one as consequential as the pardon. The use of an Autopen without Biden’s knowledge suggests a fundamental defect in the exercise of this power.
III. United States v. Throckmorton: Fraud Vitiates All Transactions
The 1878 Supreme Court decision in United States v. Throckmorton established a critical legal principle:
“There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.”
This doctrine extends to all governmental acts that are tainted by fraud. If Biden’s Autopen-generated pardons were executed without his knowledge or consent, then the process was fraudulent, rendering them void ab initio.
Furthermore, if Biden’s staff or third parties orchestrated these pardons without his direct approval, they may have engaged in a scheme of fraud and forgery, further reinforcing the invalidity of these acts. The Supreme Court’s reasoning in Throckmorton supports the conclusion that fraudulently issued executive documents—including pardons—hold no legal force.
IV. Non-Delegation and the Executive Authority of the President
The principle of non-delegation, which originates in Wayman v. Southard (1825) and was reinforced in Schechter Poultry Corp. v. United States (1935), holds that executive powers cannot be transferred to unaccountable bureaucrats or machines. The personal nature of the pardon power makes it non-delegable under this doctrine.
Biden’s failure to personally authorize and review the pardons suggests an unconstitutional delegation of a core Article II power. If his staff executed these pardons without his knowledge, they effectively usurped presidential authority, violating the separation of powers and the unitary executive theory embraced by constitutional originalists.
V. Potential Criminal Implications and Investigative Grounds
If individuals within the Biden administration processed and approved these pardons without his direct involvement, they may have committed fraud, forgery, and abuse of power under federal law. Potential violations include:
18 U.S.C. § 1001 – False statements to the government if officials misrepresented Biden’s knowledge or approval of the pardons.
18 U.S.C. § 494 – Forgery of public records, if documents were signed without lawful authorization.
18 U.S.C. § 371 – Conspiracy to defraud the United States if multiple officials engaged in a scheme to bypass constitutional requirements.
Such fraudulent actions would merit a full investigation by appropriate authorities, potentially including congressional oversight, a special prosecutor, or impeachment proceedings.
VI. A Constitutional and Procedural Crisis
Beyond the constitutional defects, Biden’s Autopen pardons also fail procedural scrutiny. Presidential pardons require direct authorization, proper documentation, and transparency—none of which appear to have occurred here. If Biden was unaware of these pardons, they lack legitimacy and may constitute an unconstitutional delegation of power. Additionally, if White House staff executed these pardons without Biden’s approval, this could amount to fraud and forgery, violating federal law. As United States v. Throckmorton (1878) makes clear, fraud cancels everything—including improperly issued pardons. This is not just an issue of executive oversight but a constitutional crisis demanding full investigation and accountability.
VII. Conclusion: Biden’s Pardons Are Constitutionally Void
Based on originalist legal principles, Supreme Court precedent, and the doctrine of fraud articulated in United States v. Throckmorton, Biden’s Autopen-generated pardons are unconstitutional and void. The pardon power requires the direct, knowing, and voluntary action of the President himself. If Biden had no knowledge of these pardons, they were fraudulently issued, and under Throckmorton, fraud cancels everything.
Accordingly, President Trump’s position—that these pardons are "VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT"—is well-grounded in constitutional law and precedent. Immediate legal and investigative action is warranted to address this potential constitutional crisis.
United States v. Throckmorton, 98 U.S. 61 (1878): https://supreme.justia.com/cases/federal/us/98/61/
Ex parte Garland, 71 U.S. 333 (1866): https://supreme.justia.com/cases/federal/us/71/333/
Burdick v. United States, 236 U.S. 79 (1915): https://supreme.justia.com/cases/federal/us/236/79/
Wayman v. Southard, 23 U.S. 1 (1825): https://supreme.justia.com/cases/federal/us/23/1/
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935): https://supreme.justia.com/cases/federal/us/295/495/
18 U.S.C. § 1001 - False Statements: https://www.law.cornell.edu/uscode/text/18/1001
18 U.S.C. § 494 - Forgery of Public Records: https://www.law.cornell.edu/uscode/text/18/494
18 U.S.C. § 371 - Conspiracy to Defraud the United States: https://www.law.cornell.edu/uscode/text/18/371
