Andrew McCarthy, former Chief Assistant U.S. Attorney and contributing editor at National Review, joined Chicago’s Morning Answer to discuss the House Oversight Committee’s report on President Biden’s alleged use of an autopen to sign pardons, commutations, and executive orders—possibly without his authorization. McCarthy called the situation “a tremendous scandal,” but said the legal remedies may be limited because of the way presidential power is defined under the Constitution.
McCarthy explained that a president’s authority is not determined by physical or mental capacity but by constitutional process. “The president’s competence is not an objective fact—it’s a constitutional fact,” he said. “Unless the 25th Amendment or impeachment is invoked, the president retains full power to act, even if aides are effectively running the show.”
That distinction, he argued, means any document bearing the president’s name—including those signed by autopen—would still be binding unless Congress or the cabinet formally declared him incapacitated. “Even if staff acted irregularly, as long as the president didn’t countermand it, courts would presume he approved it,” McCarthy said.
Proft pressed whether it would be possible to challenge such actions if it were proven Biden never personally authorized them. McCarthy pointed to historical precedent, citing Woodrow Wilson’s final year in office when his wife and aides effectively ran the government after his stroke. “Everyone knew it was scandalous,” he said, “but because Wilson hadn’t been removed, everything stood legally.”
While McCarthy doubted any pardons or executive orders could be voided, he said there may still be grounds for criminal investigation if staffers knowingly acted without authorization. “You could explore potential fraud on the government,” he noted, though he cautioned that Biden could simply claim he approved all actions, making prosecution nearly impossible.
Ultimately, McCarthy said the controversy underscores how much modern government depends on “norms” rather than clear constitutional mechanisms. “Presidents have enormous power, and when they abuse that trust, it’s not reversible,” he said. “This is a political crisis as much as a legal one.”