The case of Congressman Bennie Thompson’s presidential pardon

• Former President Biden says he consciously decided to issue the pardon. But emails obtained by the New York Times show a staffer authorized the use of the autopen for its execution.

In the waning hours of his presidency, former President Joe Biden (D) issued a flurry of last-minute pardons to people he said did not deserve to be the targets of politically motivated prosecutions.

Among those were Mississippi 2nd District Congressman Bennie Thompson (D) and other members of the U.S. House Committee appointed by former Speaker Nancy Pelosi (D) to investigate the January 6, 2021, riot at the U.S. Capitol.

The move came weeks after then-President-elect Donald Trump (R) told NBC’s “Meet the Press” host Kristen Welker that Thompson and former Congresswomen Liz Chaney (R) “should go to jail” for their role on the House Select Committee.

Biden, who awarded the Presidential Citizens Medal to Thompson and Chaney in early January, said in a statement from the White House that, “The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.”

In response to the pardon, Congressman Thompson, the committee’s chairman, said, in part, “We have been pardoned today not for breaking the law but for upholding it.”

READ MORE: Biden pardons Congressman Thompson, House Jan. 6th Committee, more on his way out

Since then, President Trump and Congressional Republicans have repeatedly cast aspersions on the manner in which these pardons and other acts of clemency were handed down. Trump has openly wondered whether Biden even knew what was granted by the White House in those last few hours, and the use of the presidential autopen has been called into question as to the pardons’ legality.

With Congress and the U.S. Attorney General now investigating these final acts in office, Biden granted a 10-minute interview with the New York Times defending the pardons and his decision to issue them.

NYT reports that Biden said that he shielded those people, along with members of his family, so they would not have to run up large legal bills from politically motivated investigations by the Trump Justice Department.

The pardon for his son, Hunter, was the only one during the period in question that Biden actually signed by hand.

“Everybody knows how vindictive he is, so we knew that they’d do what they’re doing now,” Biden told NYT, adding, “I consciously made all those decisions.”

Emails reviewed by NYT show that Biden’s White House staff secretary, Stefanie Feldman, managed use of the autopen. Feldman reportedly “wanted to receive written accounts confirming Mr. Biden’s oral instructions in the meetings before having it used to produce the warrants recording the clemency actions, the emails show,” NYT revealed.

“The aides referred to those written accounts of meetings at which Mr. Biden delivered oral decisions as ‘blurbs.’ The accounts were drafted by aides to the senior advisers who had participated in the key meetings — like Mr. Biden’s chief of staff, Jeffrey D. Zients, and Mr. Siskel,” NYT continued. Ed Siskel was White House Counsel. “The assistants who drafted the blurbs were not themselves in the room with Mr. Biden, according to the lists of meeting participants. The emails imply that Mr. Siskel and Mr. Zients relayed what Mr. Biden had said to the assistants, who then documented it.”

Prior to the release of the pardons of Congressman Thompson and the other members of the House January 6th Committee, NYT reported the following from the emails the outlet obtained:

“At the Jan. 19 meeting, which took place in the Yellow Oval Room of the White House residence, Mr. Biden kept his aides until nearly 10 p.m. to talk through such decisions, according to people familiar with the matter.

“The emails show that an aide to Mr. Siskel sent a draft summary of Mr. Biden’s decisions at that meeting to an assistant to Mr. Zients, copying Mr. Siskel, at 10:03 p.m. The assistant forwarded it to Mr. Reed and Mr. Zients, asking for their approval, and then sent a final version to Ms. Feldman — copying many meeting participants and aides — at 10:28 p.m.

“Three minutes later, Mr. Zients hit ‘reply all’ and wrote, ‘I approve the use of the autopen for the execution of all of the following pardons.'”

Whether a president has to actually sign a pardon has been debated by legal scholars and could be a matter for U.S. courts to consider in the months ahead.

The U.S. Constitution does not speak specifically to the president signing the pardon only that “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” (Article 2 Section 2). The Constitution also does not speak to reversing pardons or acts of clemency once granted.

However, as the U.S. Supreme Court held in Burdick v. United States in 1915, acceptance, as well as delivery, of a pardon is essential to its validity.

As reported by USA Today in December 2024, just weeks before Biden’s last-minute actions, Congressman Thompson told CNN if the president offered a pardon, he “would accept it” over fears of Trump’s want of retribution against him.

Thompson’s statement from the day of the pardon seemingly pointed to his acceptance, with the Congressman stating, “On behalf of the Members of the Select Committee on the January 6th Attack on the United States Capitol, we express our gratitude to President Biden for recognizing that we and our families have been continuously targeted not only with harassment, lies and threats of criminal violence, but also with specific threats of criminal prosecution and imprisonment by members of the incoming administration, simply for doing our jobs and upholding our oaths of office.”

The U.S. House Oversight Committee chairman, Congressman James Comer (R), is actively investigating whether the White House staff hid Biden’s mental decline and acted on items, such as these pardons, as his term wound down.

President Trump, in a June memo, has also directed the White House Counsel and the Attorney General to investigate whether certain individuals conspired to deceive the public about Biden’s mental state and unconstitutionally exercise the authorities and responsibilities of the President, specifically those actions related to his Article II authority or pardon power.