What Trump ordering an investigation into Biden's actions might mean legally and politically

Boston Globe

05-06-2025

What did Trump order?
Trump directed his White House counsel and attorney general to begin an investigation into his own allegations that Biden aides hid from the public declining mental acuity in their boss. Trump is also casting doubts on the legitimacy of the Biden White House's use of the autopen to sign pardons and other documents.
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It marks a significant escalation in Trump's targeting of political adversaries, and could lay the groundwork for arguments by leading Republicans in Congress and around the country that a range of Biden's actions as president were invalid.
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'Essentially, whoever used the autopen was the president,' Trump said Thursday.
He then went further, suggesting that rogue elements within the Biden administration might have effectively faked the president's signature and governed without his knowledge — especially when it came to pushing policies that appeased the Democratic Party's far-left wing.
'He didn't have much of an idea what was going on,' Trump said, though he also acknowledged that he had no evidence to back up those assertions. A Trump fundraising email released a short time later carried the heading, 'A robot ran the country?'
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Legal experts are skeptical about that the investigation will do much more than fire up Trump's core supporters.
'I think it's more of a political act than one that will have any legal effect,' said Richard Pildes, a constitutional law scholar at New York University School of Law. He added: 'I think it's designed to continue to fuel a narrative that the administration wants to elevate, but courts are not going to second-guess these sorts of executive actions' undertaken by Biden.
What types of Biden actions would be covered by the investigation?
Trump has long questioned the legitimacy of pardons his predecessor issued for his family members and other administration officials just before leaving office on Jan. 20, people whom Biden was worried could be targeted by a Trump-led Justice Department.
But Trump has more recently suggested Biden was unaware of immigration policies during his own administration, and said Thursday that aides to his predecessor pushed social issues like transgender rights in ways Biden might not have agreed with.
It is well-established that a president's executive orders can easily be repealed by a successor issuing new executive actions — something Trump has done repeatedly since retaking the White House. That lets Trump wipe out Biden administration policies without having to prove any were undertaken without Biden's knowledge — though his predecessor's pardons and judicial appointments can't be so easily erased.
'When it comes to completed legal acts like pardons or appointing judges,' Pildes said, a later president 'has no power to overturn those actions.'
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What's an autopen and how does it relate to this?
Autopens are writing tools that allow a person's signature to be affixed automatically to documents. The Justice Department, under Democratic and Republican administrations, has recognized the use of an autopen by presidents to sign legislation and issue pardons for decades — and even Trump himself acknowledges using it.
'Autopens to me are used when thousands of letters come in from young people all over the country and you want to get them back,' Trump said Thursday.
Michigan State University law professor Brian Kalt said the 'consensus view is that, as long as the president has directed the use of the autopen in that particular instance, it is valid.'
'The only issue would be if someone else directed the use of the autopen without the President's approval,' Kalt, an expert on pardons, wrote in an email.
Doesn't the Constitution give presidents the absolute right to make pardons?
Yes. Article II, Section 2 of the Constitution bestows the president with the power 'to grant Reprieves and Pardons.'
'A president's pardons cannot be revoked. If they could, no pardon would ever be final,' American University politics professor Jeffrey Crouch, author of a book on presidential pardons, said in an email. 'There is no legal obstacle I am aware of to a president using an autopen on a pardon.'
Kent Greenfield, a Boston College law professor, said, 'Once you pardon somebody, you can't go back and un-pardon them.'
'If it's done with a president's authority, I don't think it matters whether it's done with an autopen or not,' Greenfield added. 'The president's authority is the president's authority.'
Trump's suggestions that Biden's administration effectively functioned without his knowledge on key policy matters go beyond questions about pardons and the president using the autopen. Even there, though, the Supreme Court ruled in 2024 that former presidents have broad immunity from prosecution. At the time, Trump celebrated the ruling as a 'BIG WIN' because it extended the delay in the Washington criminal case against him on charges he plotted to overturn his 2020 election loss.
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Such immunity would likely cover Biden as a former president. It might not extend to Biden administration officials allegedly acting without his knowledge — though Trump himself acknowledged he's not seen evidence of that occurring.
What does Biden have to say?
Biden has dismissed Trump's investigation as 'nothing more than a mere distraction.'
'Let me be clear: I made the decisions during my presidency. I made the decisions about the pardons, executive orders, legislation, and proclamations. Any suggestion that I didn't is ridiculous and false,' he said in a statement.
Has a president ever sought an investigation like this before?
In a word, no.
There have been allegations of presidents being impaired and having their administrations controlled by intermediaries more than the public knew — including Edith Wilson, who effectively managed access to her husband, Democratic President Woodrow Wilson, after his serious stroke in 1919. Wilson's critics grumbled about a shadow presidency controlled by his wife, but the matter was never formally investigated by Congress, nor was it a major source of criticism for Wilson's Republican successor, Warren G. Harding.
More recently, some questioned whether President John F. Kennedy struggled more than was publicly known at the time with Addison's Disease and debilitating back pains while in office. And there were questions about whether dementia might have affected Ronald Reagan during his second term, before he was diagnosed with Alzheimer's in 1994, five years after he left office.
Trump himself was indicted four times, and convicted once, while Biden was in office — but those investigations were not ordered by Biden.
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Associated Press writer Mark Sherman contributed to this report.