While the autopen is a long-standing tool used by multiple presidents, Republicans aligned with Trump argue its extensive use during Biden’s final year could mask deeper constitutional issues, especially if orders were signed without his full awareness or consent.

Legal experts who spoke with the Washington Examiner say proving that scenario would require substantial evidence of forgery or fraud, a high bar that makes criminal charges unlikely but opens the door to congressional oversight and possible constitutional reform.

A White House without a president?

Mike Howell, executive director at the Oversight Project that was formerly part of the conservative Heritage Foundation, said the use of the autopen is more than a technical detail — it’s central to understanding how the White House operated.

“You have to look at the autopen,” Howell told the Washington Examiner. “It’s the instrumentality by which they were able to continue operating the White House without a president.”

Howell said his group does not believe the autopen can be used for core presidential powers. “For something like a ceremonial letter to the Girl Scouts, fine,” he said. “But for executive orders or pardons, absolutely not.”

Beyond the device itself, Howell said the critical question is whether Biden had the mental capacity to authorize any of it. “Even if you concede the legal argument about delegation, you have to ask: Was Biden even aware of what was happening?” he said.

Trump has made similar arguments, suggesting that even Biden’s more extreme policies, such as on immigration and the border, may have been imposed by others. “Biden would’ve been crazy to have cognitively known that opening the borders would basically ruin his presidency, and then done it anyway,” Howell said.

Biden, however, has been adamant that he was fully aware of the actions he signed while president. 

“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. 

The former president, via a written statement, branded the investigation by his successor as “a distraction by Donald Trump and Congressional Republicans who are working to push disastrous legislation that would cut essential programs like Medicaid and raise costs on American families, all to pay for tax breaks for the ultra-wealthy and big corporations.”

Sen. Chris Coons (D-DE), a top Biden ally on Capitol Hill, backed up the former president’s claims that he was mentally aware of his duties. 

“I had breakfast with President Biden the last Friday that he was in the White House, and he was present, engaging, positive, clear,” he said. “Did he have some bad moments his last year as president, like the debate? Yes, but I’ve seen no evidence that he actually, at any point, wasn’t fully capable of being president.”

Three-pronged probe

The investigations are already advancing on three main fronts: through the executive branch, a House Oversight Committee inquiry led by Rep. James Comer (R-KY), and a Senate-led effort that will hold its first hearing on June 18.

“It’s very similar to the Jan. 6 dynamic,” Howell noted, “where you had the committee, the FBI, and DOJ all going full bore at once.”

While the House is focused on mechanics, such as the autopen and how pardons were processed, the Senate appears to be taking a broader look at the alleged cover-up of Biden’s condition.

“They’re asking what it means constitutionally if the country was run for four years without an active head of the executive branch,” Howell said.

He also called on CNN’s Jake Tapper and Axios reporter Alex Thompson, co-authors of the book Original Sin, to testify, citing their claim to have interviewed more than 200 sources inside the Biden White House. “If you’re doing your civic duty, come clean,” Howell said. “Tell us who was propping up the president.”

Potential political and legal land mines ahead

Republicans still face the risk of falling into the same trap they once criticized Democrats for. Just as Democrats, having concluded Trump’s actions on Jan. 6 were criminal, stitched together a legal theory to justify charges against him, Republicans could undermine their own credibility if they start with the assumption that Biden aides committed illegal acts before uncovering any concrete evidence.

But some constitutional scholars say the investigations could serve a broader purpose beyond building a criminal case.

“The congressional investigation need not focus on criminal activity,” said John Yoo, a law professor at the University of California, Berkeley. “Their focus should be on whether the laws implementing the 25th Amendment for the suspension of a president should be updated.”

Yoo, who served in the George W. Bush administration, said concerns about forgery and fraud tied to the autopen’s use are legally legitimate. “If White House aides seized the power of the president and made decisions and issued orders without his knowledge and consent, they should be held accountable,” he said.

Other experts say the legal hurdles are steep. Shanlon Wu, a former federal prosecutor and longtime defense attorney who served as counsel to former Attorney General Janet Reno, said Trump’s push to criminalize Biden-era autopen usage faces “terrific” legal obstacles. “From an objective standpoint, how easy is it to make that case? I think it would be a terrifically hard case to make it as a criminal case,” Wu told the Washington Examiner.

Wu argued that drawing comparisons to the Jan. 6 investigations is more political than legal. “With Jan. 6, there were terabytes of evidence of violent crimes,” he said. “In the autopen probe, it’s unclear what statute is even in play. Using an autopen isn’t a crime — Trump himself used it. You’d need evidence that someone forged a presidential signature without authorization, and even that would rely on proving knowledge and intent.”

Even if investigators unearthed a situation where Biden didn’t know about a signed order, Wu said the government would still need a clear statutory hook, such as criminal forgery, to build a criminal case. “At first blush, to me, it’s really just a straightforward forgery question,” he said. “And even then, it’s murky — you’d need proof it was done without consent, and that’s very hard to prove unless someone inside says so.”

Wu added that while Congress has broad authority to investigate, the DOJ faces a much higher bar.

“DOJ can’t just announce an investigation to make a point — they need a predicate,” he said. “Otherwise, it looks like a fishing expedition.”

Experts unsure what law may have been violated

Some legal experts told the Washington Examiner it’s unclear what exact laws Biden or his aides could have violated, given the widespread use of an autopen beginning with former President Barack Obama in 2011. The Office of Legal Counsel at the Justice Department said in a 2005 opinion that a president can use an autopen to sign legislation.

“There is only a problem if people are signing the president’s name without his knowledge and authorization,” said Brian Kalt, a Michigan State University law professor and a constitutional law scholar.

Other scholars pointed to the lack of credible evidence that Biden did not know what he signed as president.

“It is unclear what, if anything, would be unlawful regarding the use of the autopen by former President Biden (or any other president, for that matter). It is a long-standing practice employed by several presidents, including President Trump,” national security lawyer Bradley Moss said. 

One energy advocacy group has noted that Biden signed eight climate policy presidential actions, potentially via autopen, without publicly speaking about them before leaving office. 

“We’re looking at this from the sense of deceit of the American people,” Power the Future President Daniel Turner told Comer during a Wednesday hearing. “This is impersonation of the president. Staffers, of course, have a lot of leniency in what they do working on behalf of the president, but these executive orders that we identified, there’s no evidence of Joe Biden in first person in his voice as president talking about them.”

But Moss claimed that due to the volume of documents that a president signs, “it is longstanding practice for delegation of signing authorities.”

“Absent evidence that the autopen was used to sign something which President Biden never authorized, and to date there is no such evidence of that, there is no indication any crime was committed or that any signatures can be invalidated,” he added. 

Ilya Somin, a law professor at George Mason University and the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute, said he was unsure what results an investigation into Biden’s use of the autopen would produce legally. 

“My guess is that what is ultimately going to happen is they won’t actually have anything of genuine value, at least from a legal point of view,” Somin said. 

“What they might really be trying to do is to try to invalidate various Biden pardons and foreign orders or whatnot,” Somin said. “But that can only happen if there is some kind of legal standard of what the president’s level of mental acuity needs to be in order to sign a binding order. And then they would have to show that he fell below that level.” 

Trump himself did not directly answer reporters’ questions on whether his administration had uncovered evidence Biden signed any order without his knowledge or by his aides.

“No, but I’ve uncovered, you know, the human mind. I was in a debate with the human mind, and I didn’t think he knew what the hell he was doing,” Trump said on Thursday during an Oval Office meeting with German Chancellor Friedrich Merz. 

Will witnesses cooperate?

As for Oversight’s inquiry, Comer has requested interviews with 10 former Biden aides, including five of Biden’s top advisers — Ron Klain, Anita Dunn, Steve Ricchetti, Bruce Reed, and Michael Donilon — along with White House physician Dr. Kevin O’Connor. While the first batch of five former aides responded via their lawyers before a deadline, Comer’s committee issued a subpoena for O’Connor on Thursday.

“I think subpoenas will be necessary,” said Howell, who has spent months investigating Biden’s autopen usage. “Assertions of executive privilege or the Fifth Amendment are likely. It’s time to get the ball moving on making this serious.”

O’Connor, as Biden’s physician, could likely seek to claim that medical confidentiality laws prevent him from testifying about the former president’s cognitive and physical decline in office. 

Moss, the national security lawyer, also pointed to the 2024 Supreme Court ruling giving Trump some presidential immunity from prosecution as one possible saving grace for Biden. 

“Furthermore, in light of the Supreme Court’s ruling on presidential immunity in 2024 and its preclusion of the admissibility of evidence implicating a president’s core functions, it is more than likely that any such probe conducted now by DOJ will run into a myriad of legal challenges from former President Biden and his aides seeking to shut down any subpoenas or demands for depositions,” Moss said. 

“The natural outgrowth of the Trump immunity ruling will be legal disputes over the extent to which a subsequent administration can legally inquire into the actions by subordinates in support of the president’s core functions, even if the immunity itself only applies to the president him/herself. Karma has a habit of coming full circle,” Moss continued. 

But Somin offered some words of caution about that legal defense. 

“The scope of [the] presidential immunity under that decision is extremely unclear,” he said. “The only thing they were clear on is that there is immunity when the president acts within his so-called core presidential powers.”

For other official acts, the Supreme Court left its opinion unclear, Somin claimed. 

TRUMP: BIDEN’S AUTOPEN WAS ‘DISRESPECTFUL TO OUR COUNTRY’

Whether the combined efforts lead to criminal referrals, legislative remedies, or simply a historic reckoning over how executive power was managed in Biden’s final stretch remains to be seen. But Republicans are making it clear: they believe the public deserves answers as to whether Biden was truly in charge.

David Sivak contributed to this report.