Republicans Want Answers on Joe Biden's Decline and 'Autopen'
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Congress and the White House begin to investigate the cover-up of President Biden's decline in office, with some Republicans going so far as to suggest that Biden's executive actions and pardons might be legally invalid. Meantime, the Trump administration bends to the Supreme Court bringing back to the U.S. a migrant that it had unlawfully deported to El Salvador while charging him with human trafficking.

Welcome, I'm Kyle Peterson with The Wall Street Journal. We are joined today by my colleagues on the editorial page, columnist Kim Strassel and editorial board member Mene Ukebarua.

That Joe Biden was too old and infirm to run for reelection and another four years in 2024 is now widely admitted, or at least much more widely than it was during last year's campaign. And now here come the investigations. One is being run in the House by the Oversight Committee Chairman James Comer, who last week issued letters to five more Biden advisors, including former White House Chief of Staff Ron Klain, seeking their testimony.

Here's James Comer on Fox News last week, making the argument about what he wants this investigation to find. We're starting with these staffers that we know are the ones who manually put the documents in the auto pen and press the power button to sign Joe Biden's signature.

We want to know who told them to do what and when. We want to know that Joe Biden actually gave the authority to do that, that Joe Biden was cognitively aware of what he was doing. If he even told them to use the Audipen, that's why we're bringing in Dr. O'Connor. We all know that Dr. O'Connor continuously issued reports saying Joe Biden was a picture of health.

Everyone in America knows that wasn't true. We saw that in the debate. And as more information comes forward, Dr. O'Connor is going to have a hard time explaining these brilliant reports of health that he was issuing on Joe Biden when he was president. Kim, what do you make of this? Is this worth doing as a matter of...

of congressional oversight? - Oh, absolutely. First of all, I mean, we need to understand the actual facts and the evidence and the history of the Biden administration, mostly so that we can learn lessons from it and make sure we don't have a repeat. This is a huge discussion now in the United States public policy arena about older politicians

and some of the perils that come with having them in office. I would note that Comer, you mentioned his former chief of staff, Ron Klain. He's also securing interviews with the former deputy chief of staff, Bruce Reed, a former counselor, Steve Ricchetti, Annie Tomasini, and Anthony Bernal, who were very close aides personally to the Biden family, and Dr. O'Connor. And these are the folks that if you read this new book out by Jake Tapper,

at all called Original Sin. They're called the Politburo, the people that increasingly, as Biden went on, were the very few folks around him that were allowed to see him on a daily basis and were obviously advising him on decisions. What we don't know yet is if they were making decisions.

And the reason that we care about this too, and we want to do this through an oversight capacity is there is a congressional role here as well too, because we've talked a lot about the 25th amendment, but if you dig into that, there

There isn't really much of a provision in it for what you do with a president that is simply cognitively in decline. It's more about what you do if there is an absence, a temporary absence, an incapacitated president. But there is room for a debate right now about what you have in a scenario like this and what might be done in a moment like that.

Second inquiry also being launched last week from the White House, a presidential memorandum signed by President Trump. Here's part of what it says. The counsel to the president in consultation with the attorney general and the head of any other relevant executive department or agency shall investigate to the extent permitted by law whether certain individuals conspired to deceive the public.

about Biden's mental state and unconstitutionally exercise the authorities and responsibilities of the president, unquote. Manet, what would you make of that? I mean, one thought that occurs to me is it's not clear exactly what shape that executive branch investigation is supposed to take. But if the attorney general is being consulted and involved in that, presumably that has the potential to turn into a criminal probe. And I wonder if it is

working maybe at cross purposes with the kind of oversight that James Comer wants to do in the House, because if it is in the public interest to give the public more information about how the Biden White House was operating, maybe they would allow these witnesses to clam up or maybe take the Fifth Amendment.

if there is some suggestion of a Justice Department investigation that is going to be happening in parallel. Yeah, I think that over the past few years, the American public has gotten an education in Justice Department investigations and their legitimate uses and their potential abuses.

And this seems clearly to fall into the latter category for me. It seems like a mighty stretch for the Trump administration, knowing what we know publicly, to order the Justice Department to investigate Biden and the use of the auto pen. It seems as if there is a legitimate broad question to ask, which we saw James Comer describe in that clip about whether people who operated the auto pen on Biden's behalf were ordered to do so. That's a legitimate question to ask.

But the standard for launching a Justice Department investigation should be very high. In order to open an inquiry of that kind, you want there to be a specific allegation of misconduct, not just a cloud of confusion and uncertainty and the possibility that something like that happened.

And it doesn't appear to me as if that's the case. The closest thing that we've often heard is this reference to a conversation between Mike Johnson and Joe Biden, in which Mike Johnson accused Biden or basically challenged him for having signed this order to ban LNG exports, look at natural gas. And Mike Johnson was saying that that would hurt his district. And Biden apparently denied having signed it. He said he didn't remember that he had done that. He said he only commissioned a study into it.

And so a lot of people have spooled that out into the possibility that someone might have signed the order on President Biden's behalf. But that doesn't seem like a concrete sign that something was signed without Biden's authority. Obviously, we know that his memory was failing him. And it's very possible among the hundreds of things that he signed as president that he simply forgot that he had done that. And so I think that there isn't quite enough evidence yet for this Justice Department inquiry. And to your latter point,

It's definitely true that if Congress's intention on the Oversight Committee is to get the best possible information about what really happened, and they're bringing in all of those Biden advisors to give the inside story of how the president was handled, they're going to be much more able to get honest,

testimonies if there isn't the threat of prosecution hanging over the heads of these folks. I think it's very likely that Congress and the executive branch are working at cross purposes now. And it's a shame because the oversight committee could have been very revealing if even one of these witnesses was willing to describe that inside process. But now they're probably going to close ranks and be unwilling to expose themselves to the jeopardy of a Justice Department probe. Hang tight. We'll be right back in a moment.

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Welcome back. That anecdote about this executive order on liquefied natural gas, Kim, I think is interesting because my understanding of the law here is that what the president cannot delegate is the decision to sign something or not sign something. There is some legal guidance that presidents and White Houses have been given over the decades. One of them is that pardons, the Constitution does not require them even to be signed.

So a president could set up some kind of pardon process by which he approves executive branch clemency that does not even require his signature at all. Legislation does require his signature. But in 2005, there was some guidance put out by the Justice Department's Office of Legal Counsel.

And it suggested, here's the phrase, the president need not personally perform the physical act of affixing his signature to a bill he approves, unquote. And that has been acted on by presidents since 2005. So there's an example of President Obama at one point in 2011 was in Europe.

on overseas travel when there was an extension of the Patriot Act that was passed very close to the deadline where that law was going to expire. And so shortly before that deadline, President Obama approved the affixing of his signature to the bill, which was then treated as law. For the record, here is what President Biden is saying in response to these allegations. In a statement, he said, I made the decisions during my presidency. I made the decisions about the

pardons, executive orders, legislation and proclamations. Any suggestion that I didn't is ridiculous and false. And Kim, part of what I think is so interesting about this is that the decision of whether to sign something or not sign something is a pretty low bar that could be passed by a president who is

pretty ill or not feeling his best that day or distracted by other business or campaign business or events or overtired, it essentially means that as long as his advisors were presenting him with those pardons or those executive orders and he made the decision to sign them,

that unless I'm misunderstanding this, that would be okay. It is not a test of the policy details. And think about the legislation that Congress often passes that is hundreds or thousands of pages long. The big, beautiful bill is more than 1,000 pages. Most of the Republicans who are voting for it in Congress are not going to read it end-to-end before they vote for it.

And President Trump is not going to read that either. Everybody in this process is relying on advisors and president could be badly advised or confused about what's in an executive order or forget what the executive order was about after he signed it. But that does not mean necessarily that he didn't make the decision to sign it, which is the key detail here.

This is my problem with the decision that the White House made to orient all of this around the auto pen and its, quote, legitimate usage or not legitimate usage, and then to center this in the Justice Department. I think it's a mistake both legally but also politically. Legally, as you say, even if they were to come up with some evidence that there may have been a person who signed the

something without a direct verbal order from Joe Biden. And by the way, I mean, meaning he said, go sign this now on my behalf with the auto pen. And I think that that's going to be very difficult. I doubt very much any of these advisors are going to say any such thing in this testimony. But even if you were to do that, you can't, it would be very hard, if not impossible to suggest a

that he had not at some point indicated his judgment was that he'd made the decision that this should happen, and they moved from that. And the law, if you look at it closely, it's pretty clear what that means, and that the standard was really quite high, and it would be difficult to scale it. But here's why I think it's also a mistake politically.

The reality is the auto pen is a huge part of this story, but just in a very different way. This story is about a president who fundamentally seemed incapable of managing to do the basic duties of his job.

And if you look at the history of the auto pen, what we know is, yes, prior presidents have used it and mostly in exigent circumstances. For instance, when they were traveling overseas and something urgently needed to be signed, as you noted this case of Obama when he signed at the last minute as something renewing and continuing the Patriot Act. He signed some pardons when he was on vacation in Hawaii because they were pressing and it needed to be done and he wasn't physically there.

But Joe Biden was using the auto pen all the time, partly because, and I think this is part of the story that's being missed, because he was not in the office very much. You know, we have some indication he took something like 570 vacation days in the course of his one-term presidency. And he was hanging out in Rehoboth and Wilmington and Camp David. And so he wasn't really there. That doesn't mean he wasn't knowing what was happening.

But he actually physically was checked out, which is part of this story. And then there's the fact that we've had, for instance, the Oversight Project, which is a logical drug group. They've looked at some of this and the remarkable number of orders that he actually used the auto pen when he was in the White House.

Which, again, brings up the question is, was this because he was calling a lid every day and needed to go to bed at three o'clock? Again, it doesn't suggest that he might not have known what was happening, but he seemed incapable of managing basic duties that other presidents take quite seriously.

As a standard and a norm, I think is generally good practice for presidents to be sitting down reading the things that they are signing. You might be right that Congress doesn't, but we should actually be hoping everybody does better in that regard. And it's a good example for a president to set.

And so this is, to my mind, the bigger question of the auto pen story and what Republicans might be focused on as they commence this oversight investigation. Just to underline that last point, President Biden is the first president in U.S. history in his early 80s. And that's part of why this strikes me as

appropriate oversight, Manet, as long as Republicans don't overreach and get too conspiratorial about it, is there is something new under the sun. Lifespans have never been longer. Aging politicians are still not getting less ambitious, though. And so there are some policy questions here. And I just think it would behoove the members of the Biden White House to explain to the public what actually happened. How often did they go into the Oval Office and say, President Biden's not really having a great day today. Maybe we should

hold these executive orders for next week because he'll be in a better state to comprehend those and discuss them at that point. Those are the kind of questions that I think ought to have been discussed during the 2024 election. And I think it

President Biden will not probably be the last person running for office in his early 80s. And so that's part of what I'm hoping Congress can get out here. I think it's meaningful that we're coming up on a year since Joe Biden was forced to withdraw from his reelection campaign. Of course, that was in July 2024. So we're nearing the anniversary. That means the Democratic Party has had a year to reckon with the fallout from

his disastrous performance on that debate stage, which removed any doubt about his incapacity, the infighting about whether there was a cover-up and whose fault it was. Of course, in the past month, we've gotten this Jake Tapper book exposing some of the inside conversations and the protocols that they had around Biden and the way that the White House maneuvered to keep this out of sight of the media, and frankly, the way that the media maneuvered to keep this away from the public.

And so a year, you would think, would be enough time for Democrats to start to have an honest conversation about what everyone knew for most of Joe Biden's presidency, which was that he wasn't able to actively execute the duties of his office and was putting the country at risk by doing so. It's absolutely not only permissible, but

mandatory that Republicans force this issue. And that's why I couldn't agree more with Kim that the House Oversight Committee's hearings are a vital service. I'm just hoping that the conversation will be as open and honest as possible so that people can better understand the risks of having older candidates in these types of elections, that they can understand what is allowed and what isn't allowed in the way that staffs try to manage elections.

the president or that staffs collaborate with the president in managing his office. And that the next time we are in this position as a country, there is much less hidden from public view and decisions being made ad hoc about how staffs go about this. And people feel as if they can't just get away with doing anything to cover up a potential future precedence and capacities. Hang tight. We'll be right back in a moment.

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Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker. Play the Opinion Potomac Watch podcast. From the opinion pages of The Wall Street Journal, this is Potomac Watch. Welcome back. Finally, another big story in development on Friday. The Trump administration brought back to the U.S. Kilmer Abrego Garcia.

This is the immigrant that the illegal migrant that it erroneously deported, according to the Trump administration itself, to El Salvador. The Supreme Court then in April ordered the executive branch to facilitate his return. President Trump and the White House suggested they didn't have that power, but then told journalists that they would have that power if they had wanted. Well, now Kilmer Arbrega-Garcia is back and he has been charged

in federal court with human trafficking. Attorney General Pam Bondi alleging that he, quote, played a significant role in an alien smuggling ring, unquote. Here is a little bit more of what the attorney general said. Abrego Garcia has landed in the United States to face justice.

On May 21st, a grand jury in the Middle District of Tennessee returned a sealed indictment charging Abrego Garcia with alien smuggling and conspiracy to commit alien smuggling in violation of Title VIII USC 1324.

We want to thank President Bukele for agreeing to return Abrego Garcia to the United States. Our government presented El Salvador with an arrest warrant, and they agreed to return him to our country. We're grateful to President Bukele for agreeing to return him to our country to face these very serious charges. This is what American justice looks like.

Kim, what do you make of this? I guess my read of it is the Trump administration bending to the order finally from the U.S. Supreme Court there, but in a way that allows it to save face with his indictment in federal criminal court. But remarkably, the attorney general saying thank you, President Bukele, for returning him, which I guess many observers suggested that President Trump could do at any time if he wanted. Yeah.

I mean, neither side has looked very good in this particular case. The notion that the Trump administration couldn't at any time ask the Salvadoran president to return Kilbar Abrego Garcia was ridiculous. Of course they could have. And what they did is they were now waiting for a moment

where they had a reason supposedly to go and ask for his return, i.e. an arrest warrant and these indictments from a federal grand jury. The left, of course, has not covered itself in glory with this either in that they glommed onto this person and tried to hold him up as the model citizen, despite what later came out that, you know, this was a guy whose wife had filed for protective orders against him, alleging domestic abuse. So this is a character that

we're going to find out what his actual history and record is. The administration has now brought him back. I think the important part is that we're going to have due process, which was what needed to happen all along, especially given that Abrego Garcia was subject to a withholding of deportation order that had been issued by a court saying that he specifically could not be moved to El Salvador or

And so there were all kinds of legal issues attendant to this. And again, we're now going to have due process. The charges that have been brought against him, you look into them, it would seem like a pretty straightforward case for the government to win here. I think that they've thrown in some other allegations that notably that they did not bring charges against. So they seem to be trying to brand him maybe as something more than what they've actually brought a

case against. But the case that has been brought against him is serious. These are two felony charges. And he would presumably, if found guilty, spend some time in jail and then possibly be deported, although that withholding of deportation order still does stand. Let's listen to a clip of Chris Newman. This is a attorney for the Garcia family on MSNBC. The administration will have to put up or shut up in court. I do think it's interesting to note

that the administration has called him every bad name in the book. They've called him a terrorist. They've called him a criminal mastermind, a gang member. And this is the charge that they land on, a charge that he was investigated for when he was pulled over and released for as well. So it does appear that we're sort of in an upside down world where they first send you to a prison with a life sentence and then bring you back for a trial

And despite what the attorney general says about what justice looks like, she doesn't get to make that call. Mone, Borrego Garcia may not have been charged with anything for this incident at the time. This human trafficking apparently relates to a 2022 episode. He was stopped by the Tennessee Highway Patrol who suspected him of human trafficking. He was in a vehicle with a bunch of other people with no luggage.

His wife, this is from an Associated Press story, denies that, says he sometimes transported groups of workers between job sites. So it's entirely plausible he would have been pulled over while driving with others in the vehicle. He was not charged with any crime or cited for any wrongdoing.

unquote. And, Manay, so, I mean, I guess we will get to the bottom of this in federal court, which is where this was supposed to be handled initially anyway, and let the chips fall where they may on that, I guess. There's been allegations also that Abrego Garcia is a member of MS-13, denials by his family that he was ever a gang member. And again, let's hope that this case can get to the bottom of this. But the importance of this

is that the White House has no longer taken the position that it can summarily deport someone to El Salvador in violation of a court order saying that they cannot be deported to El Salvador and then get around any sort of due process by saying, look, ma, no hands. Yeah, I mean, I think the allegation in the indictment against Kilmer Abrego Garcia is...

more thorough maybe than what you just presented. I do think that the core episode that brought him under the radar of a

law enforcement was that stop where he was transporting people. But having begun there, the investigation claims to have revealed, for example, several wire transfers between him and overseas people who are known to have smuggled immigrants throughout the country. Also, one of his alleged collaborators was actually charged and convicted with that kind of migrant trafficking in the country. And

They claim that this process was taking place over a period of years. So there was one episode for which he was stopped, but they now claim that they have evidence that shows that he was involved in this operation of driving illegal immigrants from Texas to other places in the United States.

over a period of years. And so presumably if they are alleging these things, they at least have some kind of documentation of his communications of his payments, which could substantiate them and could help them to actually get a conviction for those charges with regard to the gang membership. They do allege again in the indictment that he was a member of MS 13. I don't believe that there was any real hard evidence of that presented other than the fact that he has interacted with, corresponded with people who are members of,

So, again, they didn't bring a charge based specifically on that, but they're trying to present it as a part of his story and part of his character. But I do think that people are naturally going to be cynical about the Justice Department's approach to this case because of how the administration handled Abreu Garcia's case altogether, deporting him.

improperly by their own admission, failing to bring him back until they had something to stick a charge on him with. And so we're going to have to wait until court to see whether these charges are justified by the facts or whether it's just a political operation here trying to stick something to him.

But the case will rise and fall, Kim, exactly on that, the facts and the evidence that investigators and the federal government have gathered. And if they can prove that to a jury, by all means, Kilmar Abrego-Garcia will...

probably, I guess, get some kind of a jail sentence and then he will be deported. Maybe they will have cleared the order that says that he cannot be sent back to El Salvador and send him there at that point. Or maybe there will be a deportation to another country that will be agreed to take him. I mean, Kim, the argument over this case was never about whether this person was supposed to be in the United States or was guilty or not of any crimes. It was the due process point and the point about

requiring the executive branch to abide by court orders when they are choosing where to send people and deport them. Yeah, in that regard, this was a bit of an own goal. I mean, they didn't need to go here. The reality is, is that when it comes to immigration law, when it comes to deportation, the executive branch has really broad authority.

The courts, including the Supreme Court, have generally deferred to a great deal on grounds of national security to administrations and presidents over time. There's no reason to believe the current Supreme Court will view this any differently. All that the courts have asked all along of presidents is that they follow on those occasions where it is required certain rules.

requirements of due process. And had the administration done this, nobody would even know Kilmar Obrego Garcia's name. It would not have become a public story. We wouldn't be having these fights and it wouldn't have given Donald Trump's opponents the kind

a foothold they had been hoping for to suggest that he's playing fast and loose with the law. Because again, there's no point to play fast and loose because all the cards are stacked on the side of the administration. It might take a little bit of time. And if you listen to the president, it's funny, he's actually said that. It was like, oh, well, if we have to give a hearing to everybody, this is going to take forever. I get that.

But, you know, I think that is a small price to pay for accomplishing your policy goals in the end and taking the high ground against complaints from the other side. Thank you, Kim and Manet. Thank you all for listening. You can email us at pwpodcast at wsj.com. If you like the show, please hit that subscribe button and we'll be back tomorrow with another edition of Potomac Watch.

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