The Justice Department is still probing the late-term use of an autopen for pardons and commutations in the Biden White House, and that scrutiny is now focused on how clemency lists were approved. Investigators are digging into whether signatures reflected the president’s personal decisions or if aides moved unilaterally. Legal hurdles and executive privilege are complicating the review, and a Supreme Court ruling on presidential immunity looms large. Meanwhile, political pressure from the House and former President Trump keeps the story in the headlines.
Officials say the probe has not been closed, and investigators are working through final-month clemency actions to see what actually happened. The central question is whether the autopen was used lawfully or whether the process bypassed proper presidential approval. That inquiry naturally turns attention to records, timing, and who had authority to add names to pardon and commutation lists. Transparency gaps in the paper trail are fueling suspicion and political outrage.
A senior DOJ source told reporters that the use of an autopen by a sitting president is “established law.” Still, that legal backdrop does not end the investigation because the finer point is whether the device was used in violation of statutes or internal controls. Prosecutors want to know if each name was personally approved or if proxies signed for the president without clear authorization. Those are not trivial questions when clemency decisions affect liberty and public trust.
“These types of cases are tough. Executive privilege issues come into play,” the official said, highlighting the legal defenses that can stall or constrain any prosecutorial steps. Executive privilege and separation of powers will be front and center if investigators try to pierce White House deliberations. Those constitutional shields make it hard to get inside the decision-making process, and they increase the chance that inquiries will focus on staff conduct rather than the former president himself. That shifts potential accountability away from the top.
“It’s hard to imagine how [Biden] could be criminally liable for pardon power,” the senior DOJ official said, underlining why the inquiry may target aides instead of the former president. The official view reflects practical and legal limitations on charging a former chief executive for official acts. Prosecutors often look for discrete actions by staff that cross legal lines, such as fraud, forgery, or obstruction, rather than accusing a president of committing a crime tied to core constitutional powers. That approach narrows the field of possible prosecutions.
The 2024 Supreme Court decision in Trump v. United States also factors into any charging calculus, and the court’s language is significant. “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” the court wrote, creating a strong barrier to charging past presidential behavior. The ruling continued, “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.” Those passages complicate efforts to hold a former president criminally accountable for clemency choices.
Despite legal barriers, prosecutors reportedly are still reviewing the facts, and that review appears to include examinations of who handled paperwork and how final lists were assembled. Sources say teams are combing emails, calendars, and contemporaneous notes to establish a chain of custody for each clemency decision. The work is painstaking, because proving unlawful conduct will require showing intent or purposeful deception by aides. Without clear evidence, officials face the real prospect of closing the file without charges.
On Capitol Hill, Republicans on the House Oversight Committee have pressed hard, pointing to five pardons in the final days that drew particular scrutiny and to what they call a lack of contemporaneous documentation. They want the Justice Department to determine whether any actions should be voided because they were not genuinely taken by the president. That pressure keeps the issue alive politically and forces agencies to take public steps even when criminal exposure is uncertain. Lawmakers are framing the dispute as one about accountability and proper process.
Former President Trump has seized on the controversy, alleging unlawful behavior and proposing possible perjury or other charges against Biden, and that political heat adds urgency to the story. Biden has pushed back and insisted he personally made those decisions. “Let me be clear: I made the decisions during my presidency,” Biden said. “I made the decisions about the pardons, executive orders, legislation and proclamations. Any suggestion that I didn’t is ridiculous and false.”
Darnell Thompkins is a Canadian-born American and conservative opinion writer who brings a unique perspective to political and cultural discussions. Passionate about traditional values and individual freedoms, Darnell’s commentary reflects his commitment to fostering meaningful dialogue. When he’s not writing, he enjoys watching hockey and celebrating the sport that connects his Canadian roots with his American journey.