No John Hancock, There

Have you ever wondered why things exist (or are purported to exist)?

Take, for example, Bigfoot.  Have  you (or anyone) ever seen a clear picture of Bigfoot?  I mean, with all the tech we have these days, why is it no one can get a clear picture of the Big guy?!

Or, how about UFOs?  Have you ever seen a UFO?  Have you ever been teleported up to (or by) a UFO?  And what's with their fascination with cows and butt probes?  I've seen images of "aliens" and they look hominoid to me. Why don't they just do butt stuff on themselves and leave us earthlings alone?!?

Finally, what's up with this Autopen we hear so much about?

Recently, there has been much talk of POTUS Biden's (or someone - or several someone's) use of an autopen in the White House and I got to wondering.  What exactly is an auto pen, what is it's function (outside of the obvious) and why does it exist?

An autopen—also known as a "robot pen" or signing machine—is a mechanical device programmed to replicate a person's signature using a real pen or writing instrument. Earlier versions traced a signature from a plastic template (a matrix) that a stylus followed; modern versions use digital files stored on a smart card or USB device to reproduce the signature with consistent pressure and precision.

Historically, Thomas Jefferson used an early version (polygraph machine) in the early 1800s. Presidents such as Truman, Kennedy, Ford, Reagan, and Obama have all used autopens—typically for routine correspondence or when they were working abroad and stuff needed to get signed at home. 

For Example: In May 2011, President Obama used an autopen to sign a Patriot Act extension while in France to meet a deadline. In May 2024, President Biden used an autopen for a short FAA funding extension while in San Francisco.

The Department of Justice’s Office of Legal Counsel (OLC) has opined that a president may validly sign legislation by directing the use of an autopen—meaning the physical act isn’t required if authorization is clear.

At the heart of the "autopen scandal," is/was whether Biden had full faculty of mind when he either signed the hundreds of clemency orders on his last day in office or if someone else was in charge of things and Biden didn't know (or was incapable of knowing) what was going on.

In 2005, the Justice Department released an OLC opinion confirming that autopen use is valid—but only when the President has made the decision to sign and explicitly authorizes the signature.  That memo emphasized that what matters is the president’s intent and direction, not his physical presence. 

This brings me to my next question.  If Biden didn't know what was going on, would the use of the autopen be tantamount to forgery?  As it turns out, if the autopen were used without the knowledge or authorization of the President, that scenario would indeed constitute forgery—and could carry criminal consequences.

Forgery is broadly defined as the creation or imitation of someone’s signature without permission or authorization, with the intent to deceive others into believing it's genuine.

Legal expert and Professor Emeritus of Law at George Washington University Law School, John Banzhaf stated on June 3, 2025, in a press release distributed via PRLog that if an autopen is used without the president’s knowledge, it would violate federal criminal statutes, including 18 U.S.C. § 471 (forgery) and possibly § 495. 

The implication is clear: even though the signature may look authentic, it's still fraudulent if not properly authorized.

For reference sake, following are relevant statutes related to forgery issues at the federal level:

18 U.S.C. § 471 (Forgery of U.S. Obligations or Securities):

Whoever, with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years, or both. 

18 U.S.C. § 472 (Uttering Counterfeit Obligations)

Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 495 (Forgery or Alteration of Government Documents):

Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money; or

Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited; or whoever transmits to, or presents at any office or officer of the United States, any such writing in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited—

Shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 1001 (False Statements)

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined under this title or imprisoned not more than five years, or both.

Note that: Section 1001 is not related to forgery per se, but it does criminalize knowingly and willfully making false or fraudulent statements in government matters and it could apply if a forged presidential signature was used to misrepresent authority.

So, why is any of this important?  It's important because if someone operates the autopen and signs documents in the name of the president without his knowledge or authorization, it’s not just improper—it’s forgery. Such misuse undermines trust, violates federal law, and could render any such documents invalid, opening them up to legal challenges.

The (or a) problem which all this is that this scenario is unprecedented.  Never in the history of the country has there been such a pall cast on the office of the POTUS.  Consequently, no judicial precedent exists.  Legal experts and media commentators repeatedly note that while autopen use has been controversial, no federal or state court has ever adjudicated a case on unauthorized autopen use.   

Since there’s no direct case law on unauthorized autopen use, the best way to understand how courts might treat it is by looking at analogous case law on forgery and delegation of authority. 

Following are some useful parallels:

1. Gilbert v. United States, 370 U.S. 650 (1962)

• Facts: Defendant falsely endorsed U.S. Treasury checks.

• Issue: Whether signing someone else’s name “per procuration” (on their behalf) constituted forgery under 18 U.S.C. § 495. 

• Holding: Forgery requires that the writing purports to be that of someone else, without authorization.

• Relevance: This complicates autopen analysis. It suggests that delegated signing - if authorized - may not be forged, even when done mechanically.  But unauthorized autopen use could still be considered forgery under different reasoning.  As such, if someone used an autopen without POTUS authorization, it would squarely fit into this definition of forgery.

2. United States v. Hunt, 456 F.3d 1255 (10th Cir. 2006)

• Facts: Defendant signed a government official’s name without authority.

• Holding: The Supreme Court held that not all unauthorized signatures are forgery. The key test is whether the “false making” element is present. Agency endorsement (“per procuration”) without fraudulent intent may not automatically be forgery.  So, courts treat unauthorized signing—even when mechanically reproduced—as forgery if intent to defraud exists.

• Relevance: Supports the position that autopen misuse without direct presidential authorization (meaning the POTUS purposefully said "do it this way") would constitute forgery.

3. Benson v. McMahon, 127 U.S. 457 (1888)

• Holding: The Court emphasized that forgery isn’t limited to pen-and-ink signatures—it includes signatures produced by plates, printing, or other mechanical means.

• Relevance: This aligns closely with autopen concerns—meaning mechanical reproduction of a signature, when unauthorized, still constitutes forgery, even if it looks authentic.

4. Prussian v. United States, 282 U.S. 675 (1931)

• Holding: The Court upheld a forgery charge under criminal statutes that covered “any deed, power of attorney, order … or other writing” used to obtain money from the United States.

• Relevance: While not about autopens specifically, the case illustrates that a forged ministerial instrument—even a non-handwritten one—if used to obtain government benefits, can be criminally prosecuted.

5. Wilcox v. Jackson, 38 U.S. (13 Pet.) 498 (1839)

• Facts: Examined validity of land patents signed by clerks “by direction” of the President.

• Holding: Signatures affixed under presidential authorization are binding.

• Relevance: Early support for the idea that the president can delegate the mechanical act of signing.

6. Ex parte Hennen, 38 U.S. (13 Pet.) 230 (1839)

• Facts: Addressed presidential appointment and removal power.

• Holding: The president may delegate ministerial tasks to subordinates but retains discretion over core decisions.

• Relevance: Reinforces distinction—delegating the act is fine, but not the decision-making. With autopen, the decision is the president’s; the act is delegated.

Bottom line, what does this all mean for the autopen?  

 

I suspect that where there is authorized autopen use (like under Wilcox v. Jackson), use of the autopen is valid, because the President made the decision and delegated only the physical act.  

 

However, where there is unauthorized autopen use (like under Gilbert v. U.S. or Hunt), the use of the autopen would constitute forgery, because the signer acted without authority, even if the signature looks authentic.

 

So, cue the governmental inquisition and let the bloodletting commence.