The Department of Justice (DOJ) is continuing its investigation into former President Joe Biden’s use of an autopen in the final months of his administration — focusing on pardons and commutations — though a senior official said Biden is unlikely to face criminal exposure.
A senior DOJ official told Fox News the autopen investigation is ongoing and not closed, adding investigators are reviewing clemency actions taken in the final months of the Biden administration.
The official also pointed out, however, that the use of an autopen by a sitting president is ‘established law.’
The issue under review is whether the autopen was used in violation of the law, specifically, whether Biden personally approved each name included on pardon and commutation lists.
‘These types of cases are tough. Executive privilege issues come into play,’ the official said.
What is also clear, the official indicated, is that the target of any potential prosecution would not likely be Biden.
‘It’s hard to imagine how [Biden] could be criminally liable for pardon power,’ the senior DOJ official said.
The official noted that one reason the former president would be unlikely to face charges stems from a 2024 Supreme Court ruling that originally involved current President Donald Trump but would also apply to Biden.
‘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 Supreme Court ruled in Trump v. United States in 2024.
‘At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.’
Sources familiar with the matter told Fox News Digital that U.S. Attorney Jeanine Pirro’s team continues to review the Biden White House’s reliance on an autopen, contradicting a recent New York Times report that indicated the investigation had been paused.
Trump has pushed for consequences over the autopen controversy, alleging on social media that aides acted unlawfully in its use and raising the prospect of perjury charges against Biden.
Biden has rejected those claims, saying in a statement last year he personally directed the decisions in question.
‘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.’
The House Oversight Committee has homed in on Biden’s clemency actions, including five controversial pardons for family members in the final days of his presidency, citing what it described as a lack of ‘contemporaneous documentation’ confirming that Biden directly ordered the pardons.
The committee asked the DOJ to investigate ‘all of former President Biden’s executive actions, particularly clemency actions, to assess whether legal action must be taken to void any action that the former president did not, in fact, take himself.’
Fox News Digital’s Ashley Oliver contributed to this report.