The Biden autopen ‘investigation’ is fruit of a poisoned tree

I will admit at the outset that it has been a long time since I approached the legislative branch with anything resembling humbled awe. The problem is that I have known too many legislators.

Still, there was a time — even fairly recently — when Congress functioned well enough that its work product deserved respect. There was a lot of performative wrestling and outrage from individual elected officials, but bipartisan relationships and the legislators’ own interest in backstopping their collective work served to smooth out most wrinkles in the final product. I mean, in 2020 a Republican-led Senate committee produced a report documenting Russian interference in the 2016 election, even drawing a line between Trump’s campaign and Russian intelligence. Marco Rubio was on that committee! Five years ago was a different world.

Of course, that was the Senate, which (as Robert Caro will remind us) was designed to be the more sober, serious side of the Capitol. And that was in an era where Donald Trump, while holding the GOP base tight in his grip, still hadn’t completely locked down party officials.

House Republicans, meanwhile, spent Trump’s years out of the White House first trying to shred the Biden administration and then trying to ensure the former president’s unfettered return to power. Over the course of 2023 (when the GOP regained the majority in the House) and until the day Biden announced he wasn’t seeking reelection, Republicans like House Oversight Committee Chairman James Comer (R-Ky.) did everything in their power to impugn the Democratic president and his party.

It’s hard to overstate just how far this went. As one of the relatively few journalists covering what Comer and his allies were doing, I found it frustrating how little attention the effort got — meaning that it’s likely that many Americans and many reporters don’t fully appreciate the extent of the bad-faith attacks. I won’t rehash them here, but I will point to this overview of all of the attempts to smear Biden over the course of 2023, to the collapse of one of the trashiest insinuations offered by Comer and Sen. Chuck Grassley (with right-wing media’s help) and to the fizzling out of the obviously contrived “impeachment investigation” targeting Biden. It was deeply, deeply dishonest and the only ones paying attention, it seemed, were the Twitter users and Fox News hosts who were cheering it on.

You will forgive me, then, if I don’t take seriously the Oversight Committee’s new report, alleging that key actions taken by the Biden administration were “illegitimate.” And that’s even before reviewing the report itself, flimsy enough to be at risk of disintegration from even a whisper of wind.

To distill the conclusion, Comer and his majority determined that Biden’s mental capacity was diminished during his last year in office, meaning that maaaybeee people on his staff signed stuff without his knowing it and that maaaybeee that included some of his pardons? If this sounds a lot like something Trump himself would say, that’s not an accident. The probe by Comer’s committee developed in concert with Trump’s rhetoric on the issue, functionally handing over to the president the power of congressional oversight activity.

Trump wants someone to say that Biden’s pardons are illegitimate so that he can push his opponents into the Justice Department’s acquiescent crosshairs. Comer and his friends are happy to give him the pretext. As I wrote for The Washington Post in June, there’s no actual question that those pardons were issued on Biden’s instructions. But the game here has always been to whip up a fog of uncertainty — was the 2020 election somehow stolen? can’t a president just destroy a third of the White House? — that lets Trump move forward with what he always intended.

What an Oversight Committee could be doing, of course, is conducting oversight on the executive branch. There’s no shortage of serious questions about the sitting president that would seem to warrant more urgency than unserious questions about a former one. Trump’s own pardons, the enormous sums of money he’s earning from people who are benefitting from the administration’s decisions, his deployment of the military against nebulously defined actors in the Caribbean — the list goes on. Hell, you’d think that the House might be interested in assessing Trump’s willful disregard for Congress’s power of the purse. But that’s only if you think that the intent of Comer and Oversight is to aid Americans instead of simply siding with the president. (Not that this is a surprise; one of the first things Comer did upon taking leadership of Oversight was kill an investigation into Trump’s finances.)

I write all of this centrally because, despite the past three years, Comer and his committee are still granted the baseline assumption that their work product is offered in good faith. The Post’s coverage of its new report, for example, mentions only in passing that Biden has been an ongoing target of Comer’s and doesn’t add the useful context that his targeting has resulted in any number of misfires. This is the same paper that, in 2023, ran the accurate headline, “Comer mischaracterizes Hunter Biden car payment reimbursement to his dad.” Yet we’re led to assume that his current characterizations should be assumed to be legitimate.

No one would credibly argue that questions about Biden’s acuity were baseless. But no one can credibly argue that the output of a Comer-led Oversight Committee is inherently trustworthy. Comer spent years proving that he would embrace any disparagement of Biden as he ignored any criticism of Trump. That should be a focus of assessments of the committee’s output before we consider the output itself.

On Tuesday morning, the next step of the plan swung into action. Speaking to reporters, House Speaker Mike Johnson (R-La.) stated that any Biden administration action that involved the use of an autopen “should be voided,” including pardons. Then come contrived investigations and then come arrests and then come administration lawyers telling district courts that the question isn’t settled and maybe they should just head over and ask Samuel Alito his view of the matter.

The balance of powers has tipped heavily toward the executive branch. Since Jan. 20, Comer and Johnson have been doing most of the tipping.

Photo: Comer at CPAC 2025. (Gage Skidmore/Flickr)