AILSA CHANG, HOST:
Hours before President Biden left office, he signed a number of preemptive pardons, and those pardons went to the House committee investigating January 6. These are preemptive pardons for people like Dr. Anthony Fauci, General Mark Milley. In a statement, Biden had said that he wanted to shield these people from, quote, "unjustified and politically motivated prosecutions" from the incoming Trump White House.
Well, since entering office, President Trump has declared on social media that Biden's pardons are invalid, claiming without evidence that the Biden administration used a writing machine called an autopen to sign those pardons without Biden's knowledge. Trump's statement does not have the force of law, and Biden has repeatedly insisted that he was personally behind all the decisions made during his presidency. But today, the House Oversight Committee, chaired by Republican Congressman James Comer, asked the Justice Department to look into what they call the, quote, "Biden autopen presidency." Attorney General Pam Bondi says her team is doing exactly that.
To talk more about this, we're joined now by Mark Osler. He's a law professor at the University of St. Thomas, known for his work on clemency. Welcome.
MARK OSLER: Thank you.
CHANG: So this House Oversight Committee accuses the Biden White House of covering up Biden's cognitive decline. Let me just ask you, what does this report ultimately ask for?
OSLER: Well, it's asking for a further investigation by the Department of Justice. I think they were frustrated because some of the witnesses pled the Fifth. And there's a political point being made as well.
CHANG: OK. And just to remind everyone, this is a Republican-led committee. What do you make of the argument that they lay out in this report about Biden's cognitive decline and the permanence of these preemptive pardons?
OSLER: Yeah. I'm not an expert on cognition, but I am an expert on clemency, and I can tell you that the Constitution doesn't make any requirement whatsoever as to how a pardon or a commutation is going to be put into writing or issued at all. And we've seen a variety of methods used over the years. You know, in 2005, the Office of Legal Counsel provided the president with advice that the president could use an autopen to sign bills - obviously one of the most important things the president is going to sign. And since then, presidents have used autopens for a wide variety of things...
CHANG: Right.
OSLER: ...Especially when there's a lot to be signed at once.
CHANG: Well, what can the Department of Justice actually do in this situation? Like, can you think of anytime a pardon from a president has been reversed or declared null and void, as this House committee and President Trump would like to see happen here?
OSLER: No, that hasn't happened. Once a president issues a pardon, it's been viewed as final. And so if something was to get overturned here, this would really be breaking new ground.
CHANG: So are you telling me that a president's pardon power is absolute?
OSLER: It's surprising, but that's what it says in the Constitution. It's almost absolute. It can't cover people who are under impeachment, and it's generally accepted that it can't pardon future crimes, those that haven't been committed yet. But yes. It's really rare in having so few checks and balances.
CHANG: Well, then - OK - say you're a person who did receive a pardon from President Biden. What would you advise that person to do to protect themselves legally now from having that pardon reversed or somehow invalidated during the Trump administration?
OSLER: Yeah. There's really not that much that they can do. Again, I think most people who have studied this would be shocked if a pardon was overturned. One of the things that I really fear that could happen with this investigation and some of the conclusions that they seem to want to reach is you have 37 people who received a commutation of their death sentence by President Biden. And I would really think it would cause a constitutional crisis if President Trump moved to execute those people despite that commutation of the death sentence. But going forward, I hope that pardons aren't undermined. They're under enough stress as they are.
CHANG: Mark Osler, from the University of St. Thomas, thank you very much for being with us today.
OSLER: You're welcome. Transcript provided by NPR, Copyright NPR.
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