WASHINGTON

Obama granted pardons by autopen. Could Trump grant them by tweet?

Gregory Korte

USA TODAY

The mechanical signature of President Obama's appears on a pardon warrant issued Dec. 19. 2016. The president was in Honolulu when the White House issued the clemency paperwork.

WASHINGTON — When President Obama granted full and unconditional pardons to 78 people last month, he was in Honolulu as White House aides prepared the formal pardon warrant.

So the White House used a mechanical device known as an autopen to sign the pardons.

It's been an open secret for at least a decade that presidents have used the autopen to sign all manner of presidential paperwork, even including bills and proclamations.

But the use of facsimile signatures on pardons goes back even further — at least nine decades — underscoring just how little presidential effort is legally required to grant pardons.

While the Constitution grants the power of the pardon to the president alone, the White House is relying on a 1929 solicitor general's opinion says the president doesn't need to personally sign the paperwork. That opinion, released for the first time under a Freedom of Information Act request from USA TODAY, says it is "wholly a matter for the president to decide" how to issue a pardon.

"Nobody but the president can exercise the power, but the power having been exercised the manner of making a record and evidence thereof is a mere detail which he can prescribe in accordance with what he deems to be the practical necessities and proprieties of the situation," said the opinion from President Herbert Hoover's acting solicitor general, Alfred Wheat.

That relatively minor detail has big implications for when a pardon becomes final and irrevocable, especially as recent presidents have gone on clemency binges just before the end of their terms.

In this March 23, 2010, file photo President Obama signs the health care bill in the East Room of the White House. Presidents of both parties have been using autopens for decades.

Scholars disagree. George Lardner Jr. of American University has argued that pardons are official only after being delivered, allowing a president to "unpardon" people who haven't received the paperwork; but Brian Kalt of Michigan State University has maintained it's final as soon as the president signs and publicizes it.

P.S. Ruckman Jr., a political scientist who has examined presidential clemency warrants from George Washington to Obama, said he's seen "a bazillion not signed by the president."

So could a President Trump grant a pardon via Twitter, his favorite platform for presidential pronouncements?

"I hope not, but I think that it could work," said Kalt.

"If Trump tweeted, 'Pursuant to my authority as President I fully pardon @ProfBrianKalt for any federal offenses he has committed since 1/20/2017,' I think I would have a colorable argument to take into court," Kalt said in an email. "The pardon power is a constitutional one, and as such it is doubtful to me that Congress could legislate any sort of hard restrictions or forms."

The 1929 opinion laid out two considerations for the president in providing written evidence of a pardon.

"The important thing is to guard against the issue of spurious pardons. That ought not to be difficult," Wheat wrote. "Then, too, custom and propriety require that the pardoned man be given some token to show that he's been pardoned. That need not have the president's autograph."

A retweet, perhaps?