Senior Litigation Counsel Margaret Harker joins Mark Chenoweth and John Vecchione to unpack the House Oversight Committee’s auto-pen investigation — a 100-page probe that raises serious questions about President Biden’s cognitive fitness, missing decision records, and last-minute pardons allegedly authorized via an auto-pen rather than by the President himself. They discuss the committee’s referral to the Department of Justice, the legal issues around voiding pardons, and why the report’s findings matter for presidential accountability and the rule of law.

Mark Chenoweth: If you think that unwritten law doesn't affect you, think again. Whether you're a business owner or a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they're really restricting your liberty without the consent of the government. Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. We are delighted to have with us for the very first time on the program our new colleague here at the New Civil Liberties Alliance, Margaret Harker. Margaret, welcome to Unwritten Law.

Margaret Harker: Thank you, happy to be here.

Mark Chenoweth: Before Margaret joined us, she had a lot of interesting jobs, including as an AUSA in Richmond, Virginia, and in Knoxville, Tennessee. But most recently, you were on Capitol Hill. Can you tell our audience what your job was on Capitol Hill?

Margaret Harker: Yes, I had a few gigs on the Hill, most recently on the House Oversight Committee, Oversight and Government Reform. And most recently, I was a part of Chairman Comer's investigation into the Biden administration and what is known as the Autopen scandal.

Mark Chenoweth: Yes, the scandal, which has its own portrait in the White House now. So, tell us about your work on the Autopen investigation. There may be things that you can't tell us because they're not public yet, but there was a major report put out right before you left. So, what do we know now that we didn't know before about what was going on during the final years of the Biden presidency with regard to the Autopen?

Margaret Harker: Yes. So, Chairman Comer led the investigation, and I was a part of the team involved in doing the investigation at the staff level. As part of the investigation, 14 depositions and transcribed interviews were conducted of top Biden staffers. And through that investigation, we looked into 1.) the cognitive deterioration of President Biden; 2.) the cover-up of his cognitive deterioration; and 3.) who was running the White House in his stead.

Mark Chenoweth: So, who was running the White House in his stead? Maybe we should start there. That'd be a big scoop.

Margaret Harker: The short answer is his inner circle. The committee issued a 100-page report detailing findings on all three things that I just mentioned that were investigated, finding, first, that given his cognitive deterioration and given the fact that there was a lack of a process to determine how the president's alleged decisions on a particular executive action were translated into an Autopen signature and the opportunities for exploitation, particularly as he was continuing to lose command of himself, that there are real concerns about the validity of all executive actions that were taken in his presidency.

And Chairman Comer referred the results of his investigation to Attorney General Bondi to look into that and assess any legal action that needs to be taken to void pardons in particular, but any executive action that was taken without the president's knowledge and consent.

Mark Chenoweth: Well, that seems like a major development. What's been the reaction to this, to having uncovered this information?

Margaret Harker: Depends who you ask. Not surprisingly, some folks in the media have not found much concern with the state of President Biden and what was happening in the White House.

Mark Chenoweth: So, walk me through the timeline here a little bit, because if we think about sort of when everyone became aware of it, there were certainly episodes and whatnot that I think caught people's attention. But probably the first thing that caught everyone's attention was Robert Herr saying, “Well, we're not going to recommend going after the president on his having confidential documents at his house because there's some cognitive issues here that he…”

John Vecchione: Well-meaning but forgetful old man.

Mark Chenoweth: Was that the phrase?

Margaret Harker: “Elderly man with a poor memory” was the key quote.

Margaret Harker: I'm trying to remember the exact timeline, but it was not long after a special counsel, Herr's report, came out – was the Super Bowl. So, that's February? I'm not a sports fan.

Mark Chenoweth: Could have been late January, but something like that. So, January, February –

Margaret Harker: Okay. Early winter. And as part of the investigation, one of the things that we found out about, one of the many examples of the cover-up that we found out about from his top staff, was that Anita Dunn, who had been a longtime advisor of President Biden, who was tasked with responding to the Herr report herself, decided to decline doing a Super Bowl interview because she didn't want people to focus on the Herr report; aka, she wanted to mask the concerns about his cognitive abilities.

John Vecchione: And I think now, see, Jim Garrity in National Review was writing about this before the Herr report. He covered Biden's schedule, what the official schedule was, and when it turned off and when it turned on. And then he said, "What president doesn't go on the Super Bowl after he had done all this a few months before that?" So, there were that type of press reports coming in. But I do remember this very much because who doesn't go on the Super Bowl and say, "Well, I like this team, and I think it's going to be a great game for all Americans?"

Mark Chenoweth: It's free.

John Vecchione: Yeah, exactly.

Mark Chenoweth: And if you're running for president at that point in time, why wouldn't you want to be on to an audience of millions, right? Hundreds of millions.

John Vecchione: Tens, yeah, maybe hundreds.

Mark Chenoweth: Yeah. So, that was, I think, arresting when that happened. And then, of course, we all saw his pathetic performance in the first presidential debate. And I think that that sort of set off alarm bells and ultimately led to his resignation from the race. But staying in power as president, which – I've always struggled with this idea that, "Okay, you're not competent to run for president, but you're competent to continue serving as president." That seems a little bit inconsistent to me. But were there earlier indications from even before Robert Herr that the committee focused on?

Margaret Harker: Yes, there were. I mean, I think throughout the Biden presidency, there were concerns. You know, you'll recall the president needing to be escorted out by an Easter bunny at the White House Easter celebration. Clips that the American people saw throughout his presidency that just increased over time.

Mark Chenoweth: Seeming lost on stage, not knowing where to go to get off the stage, that kind of thing.

Margaret Harker: Needing direction on basic things from his staff that presidents would not normally need.

John Vecchione: I remember when Maloney had to take him and put him where the photographer needed him. It was wandering off, and she grabbed it and pulled him back.

Mark Chenoweth: And I remember former President Obama walking him off stage at one point at a political rally when it seemed like he didn't realize that it was over. And he sort of turns him around and ushers him offstage with his hand on his back.

Margaret Harker: And long before the debate performance that everyone recalls, there were a number of Democrat donors.

John Vecchione: I don't think Biden recalls it.

Mark Chenoweth: So, not everyone.

Margaret Harker: That the American public recalls so well. There were Democrat donors and party members who were behind the scenes expressing concerns to Biden's inner circle about the president's performance, even at small, intimate gatherings with donors and things like that. What was shocking to me in the investigation was that the first member of the inner, the first time that a member of the inner circle expressed real concern about the state of the president, was after the debate, when his then chief of staff, Jeff Zients, called for a full medical workup of the president, which would include a cognitive exam, which, to that point, Dr. O'Connor, the White House physician, had not conducted.

John Vecchione: Very interesting. So, now let's get to the part, I just want to say, have either of you ever used an auto pen? So, when I was a young – this is my one DC thing – I worked on the Hill, and you had to sign the letters that would go back to constituents with an autopen. And there was a very long process from the chief of staff, like which type of letters, like the letters that just included what bills he was backing; that was one level, and there's another level.

But then they'd give you a stack of approved letters, and you'd go and you'd put it in the machine, and it was operated by a foot pedal, and you'd hit the foot pedal. It's a button; it wasn't like, it wasn't hydraulics, it was a button, but it was operated by the toe. And then the senator's name would be done exactly as his name was done, but everything was very highly vetted. They didn't let the interns decide what letters got signed.

Mark Chenoweth: Right. Yeah. We did not have an auto pen in the Pompeo office. And in fact, he didn't allow other people to sign his name either, which is something that other, other offices do sometimes.

John Vecchione: How did they do? I mean, these constituent letters of – we're following these bills, and there's thousands of them.

Mark Chenoweth: Sure, sure. Well, you can do versions of it that aren't an auto pen, right? You just print the name essentially, but yeah. But no one would think that it was actually his signature.

Margaret Harker: The concern here was the lack of a process, a record to show that President Biden had in fact agreed to take whatever executive action it was that was then signed off by the auto pen. One of the egregious examples that came out of the investigation was on the last night of President Biden's presidency. Late at night, there was apparently, though there's no record of it, a meeting with Joe Biden and Ed Siskel, the White House counsel, and Bruce Reed, where they discussed pardons.

In testimony from Chief of Staff Jeff Zients, who was not at that meeting, he said this meeting occurred; again, there's no record of it, and that following that meeting, Bruce Reed and Ed Siskel went to Jeff Zients' assistant, Rosa Po, and said, "Please relay to Jeff Zients that the president has approved these pardons." Rosa Po called Jeff Zients, who was at home, not on the White House grounds, and said, "This is what occurred. No verification is done."

We don't know whether the meeting occurred. We don't know what President Biden specifically decided upon. Then Jeff Zients gave Rosa Po the authority to send an email on his behalf, from his account, saying these pardons have been approved, and I approve the use of the autopen.

Again, no confirmation from President Biden, no confirmation from the staff that were apparently at the meeting. Rosa Po was not in the meeting herself. And you'll remember that that night, Dr. Fauci was pardoned, General Mark Milley, members of the Biden family itself, and members of the January 6th committee on Capitol Hill and their staffers. So, these are not inconsequential pardons that were occurring, and there's very little record of how all of this was decided, if at all. And keep in mind, the reason this matters is he was cognitively deteriorating. He was no longer fully in command of himself on a consistent basis.

As we found in the investigation, he needed more meetings to make decisions than he used to. His staff was focused on “lightening the president's load.” One of his staffers, it was Mike Donilon, I believe, testified to the committee that it really was a lot to ask the president of the United States to fly from Italy to Los Angeles. So, we had to focus on lightening his load, making sure he had more time with his family, things like that. And there were countless examples of this.

Mark Chenoweth: Well, there was a lot of time at the beach.

John Vecchione: I know that. But what's the legal aspect of this? Because I know Phil Hamburger's written about it. What's the upshot?

Margaret Harker: Well, the upshot, as Professor Hamburger has written, is that the president alone can make pardon decisions.

Mark Chenoweth: It's the power belongs only to him. It's not some sort of executive branch power. It's not something he can delegate. He's the only one who has the power to pardon someone.

Margaret Harker: Absolutely. And if he is not the one making those decisions himself, which the committee is concerned that he was not, then those decisions can be voided in court, which is why the committee has referred this to the Department of Justice to take legal action where appropriate.

John Vecchione: So, the question is, if you ask Biden and he says, "I remember approving that," what happens then?

Margaret Harker: Well, is he fit to say that now?

John Vecchione: Well, that's the question, because here's the thing. Thanksgiving's coming up, so I'm worried about those turkeys that he pardoned every year. They may be back on the block. But what I really am wondering is that because all those –

Mark Chenoweth: Those should be the first two pardons voided.

John Vecchione: First two pardons voided. But as this goes through, I just – you're going to have –someone's gonna want to –

Mark Chenoweth: Then we can get to the other turkeys.

John Vecchione: Someone's going to want to take away the pardon to prosecute, right? You're not just going to give declaratory judgment that this Fauci pardon was not properly done or was not approved by the president, right? It can only come once somebody prosecutes, and then you say, “No, I have a pardon,” just like Epstein's girl said, “No, I'm part of this deal that got me off,” right? That it's an agreement, a non-prosecution deal. And then the question was, was she in or was she out?

That's the only way you can do it. So, the question that comes up for me is, are they going to prosecute? Because if I were one of those people with a pardon, I would want to be prosecuted while Biden's still alive. Or I'd certainly get a deposition right now.

Mark Chenoweth: Explain why that is. Why is that important?

John Vecchione: Because if Biden says I meant – and all those people sound like people that Biden would pardon when Trump was coming in. It sounds plausible to me. If Professor Hamburger is correct here, then they are in jeopardy again. And I would want to do a preservation deposition myself, just because he's old and he's got cancer. And I would want a preservation deposition that said, “Look, I authorized all of these. And I remember that meeting, or my recollection is refreshed by this, that, or the other thing.” And then I think that would make it bulletproof. But if I was one of those pardoned, I would try and get that now.

Margaret Harker: I'd be very surprised if they would be able to get that now. If you listen to the tapes from the Herr interview and the difficulty he had, I'm not talking about the things that were covered by the media and the difficulty remembering personal details, but actually how long it took him to not answer a question and talk about completely different topics, and not in the typical politician kind of way, in the way that makes you think this person doesn't know what's being discussed. Granted, a court can assess the credibility of something like that. But keep in mind, this isn't just the pardons that I mentioned. It's also clemency actions for violent convicted criminals.

John Vecchione: Yep. That's the one I think, in my view, is more plausible, because he's not going to know who those people are. He may know who… I mean, he forgot who George Clooney is, but he might remember who Fauci is. He was just... You saw that he did go to the restaurant and greeted everybody three blocks from here.

Mark Chenoweth: Right. Carbonara.

John Vecchione: At Carbonara.

Mark Chenoweth: That's right.

John Vecchione: So, anyway, he's still ambulatory. Let me put it that way. And if I –

Mark Chenoweth: And was meeting with Lloyd Austin for dinner, it looked like.

John Vecchione: Yeah. If I was the defense attorney and I had someone in jeopardy, I would take my chance on a deposition right now.

Mark Chenoweth: Not just have him sign an affidavit?

John Vecchione: No.

Mark Chenoweth: Okay.

Margaret Harker: I'd be surprised if they would do that. I mean, I just think for years now, his inner circle has kept him very tight.

Mark Chenoweth: One of the things that was most interesting about what you were saying is that it was the night before January 20th. And I would think that late at night would be exactly the time when they wouldn't want to have a meeting with him. I mean, any of us who've been around –

John Vecchione: That's a good point.

Mark Chenoweth: – folks who are having cognitive difficulties, they are not good at that hour. That's not when you want to try to get them making decisions. And so, there's something about just the timing of that particular meeting is suspect to me.

John Vecchione: No question. And I have a question. So, President Trump was interviewed the other night, and he says he has no idea who Changpeng Zhao is, the head of this crypto organization. I don't even know who that guy is. Is he in trouble now? I mean, from my perspective, it used to be in DC, the Justice Department vetted all the pardons, right? There was a process that went up and-

Mark Chenoweth: It was the Office of the Pardon Attorney.

John Vecchione: Office of the Pardon Attorney, and you didn't get pardoned until you went through that office. That's why the number of pardons in all the presidencies before, I think, Clinton are like very… They all had to go through justice, and there was this long checklist.

Mark Chenoweth: Or at least Kim Kardashian.

John Vecchione: Exactly, at least Kim Kardashian.

Mark Chenoweth: One of those two.

John Vecchione: Right, exactly. So, now, I think since Clinton and Marc Rich, and then suddenly getting into the Oval Office to ask these guys, particularly in the Trump and Biden administrations, for pardons, it's totally... No one at Justice has any idea what's going on.

Margaret Harker: In the investigation, it was uncovered that folks within DOJ who dealt with pardons, specifically, and ethics attorneys expressed concerns about whether Biden knew the full extent of what he was doing. There are documents in the report describing this, saying particularly with the clemency actions, there are concerns that the president does not know the histories of these individuals.

Mark Chenoweth: There was one judge, if I remember the details here, who was getting paid to essentially find juveniles guilty and send them to this private facility that was benefiting from having more people sent there.

John Vecchione: This is the worst.

Mark Chenoweth: And I just... How could you possibly... You've got a judge who's...

John Vecchione: Being paid to send these kids to these places, no matter what they did.

Mark Chenoweth: Ruining lives, just ruining lives. Now, why any president would ever give clemency to a judge who had done something like that, I just can't fathom it. And so, I found that one particularly egregious.

John Vecchione: Until this time, the only big mass pardon I remember was Jimmy Carter pardoning all the Vietnam draft dodgers.

Mark Chenoweth: Who went to Canada.

John Vecchione: Yeah. Yeah. And so, he pardoned all of them, and it was a number of them. But it was a big deal. You knew Jimmy Carter knew what was going on. He made it part of his; now we're going to be all together and stuff. And he announced it. I mean, these mass pardons, and the J6ers, we all know, he made that... Trump made it.

Mark Chenoweth: Gerald Ford's pardon of Richard Nixon was not in question.

John Vecchione: Right, exactly. Some of them, you know they did it, even if they're... But I'm saying, you can have a mass pardon that is completely, we understand. But those Biden ones with this auto pen, like the judge and some of these people that you're describing, Margaret, they did terrible things, and you don't have any idea why they're getting a pardon.

Margaret Harker: And I think it is important to keep in mind that when President Biden was running the first time, he described himself as a bridge candidate. He was implying he wasn't intending to do this long-term. He was sort of seen as a centrist. That's what helped him get elected. And then he turned out to be one of the most progressive presidents in history. How did that happen? Maybe because he wasn't calling all of the shots.

John Vecchione: Right. Personnel is policy, as we say.

Mark Chenoweth: Yeah, absolutely. So, what happens now? How does this all end?

Margaret Harker: The ball is in the DOJ's court. I'm as eager to see some answers as you are. But you did mention one last thing that I want to make sure I address: thinking of financial incentives. The committee did uncover that Mike Donilon, who was a close advisor of President Biden and was responsible for getting polling information to the president about the election, had a very significant financial incentive to not share accurate polling information and keep him in the election as long as possible. And that was he was paid $4 million. And then in the course of the investigation, we learned that he would have made an additional $4 million, totaling $8 million, if Biden had been reelected.

Mark Chenoweth: And I saw that Megyn Kelly gave you credit for asking the question at the deposition that elicited this piece of information. So, congratulations on gleaning that fact. Now, his response was something along the lines of, "Well, but I was the first one who encouraged him to get out of the race. So, obviously, that sort of shows that I wasn't being influenced in the wrong way."

John Vecchione: I'll tell you this. I did not realize the significance of that because I saw that clip, but I didn't realize until you just said that that he had a reason for keeping him in. I was thinking that “Wow, gee, all these campaign consultants get their money, whether anyone wins or loses, and they never have any ideological commitment to the president.” We've certainly seen on the Republican side, they're absolute mercenaries. And I thought, why is that bad? Because I always see these guys who get all their money no matter what happens.

And I thought that was really bad. But now you've explained it. I did not read the article. I just saw that clip again and again. I was thinking, well, you know, that pay for performance, I understand. But now I see it gives you big incentive to keep a guy in just because a major party candidate always has a chance. Right.

Margaret Harker: And keep in mind, this isn't just any political situation. Of course, you want to keep your guy, and you want them to be elected. This is a situation where the president was not able to fully execute his duties as president. So, this isn't your ordinary situation. So, getting that kind of money, which I'm not in that business, but I've heard is really a significant amount of money for that, even for that line of work.

Mark Chenoweth: Yes, I think that's fair to say, particularly he wasn't the campaign manager. He wasn't the top guy. So, you're just talking about somebody else on the team. Well, I do find this all very distressing, because I think regardless of who's in power and who the team is around the president, you would want the elected president making these kinds of decisions. And if that wasn't happening here, I think that's a problem for all Americans, regardless of party, because the team around him – those people weren't elected to make these kinds of decisions.

John Vecchione: You know, I do have one final thing, though. The pardon signed by the president strikes me as prima facie evidence, at least of the pardon.

Mark Chenoweth: Except that they were signed by Autopen.

John Vecchione: It was. But can you get behind the actual document that's a pardon that is judicially cognizable by oral testimony? Well, what can you do there?

Margaret Harker: Well, it –

John Vecchione: And that's an evident that's really not an administrative law question, but it is a trial question that I've been thinking of that I don't know the answer to.

Margaret Harker: Well, you raised an important point that did come out in the investigation, which is the records behind the decisions. So, we did delve into what were called decision memos and decision binders and the process by which those were created, how they got to Biden, how they got ultimately to whoever was operating the Autopen. And the short of it is there wasn't a clear process. There were multiple opportunities for exploitation. There wasn't a clear chain of custody, and it wasn't always followed. So, I think if you want to look, say, at the pardon of Dr. Fauci or whoever in particular, you look for records that may refute whatever President Biden today decides to say on record.

Mark Chenoweth: Well, I think one of the things that's come out of this is I don't understand why the Autopen would be used for this purpose. I understand you were talking, John, in a congressional office, the Autopen was used for what?

John Vecchione: Letters.

Mark Chenoweth: Responding to constituents.

John Vecchione: They vote out in the open, right?

Mark Chenoweth: They vote out in the open. And there's no doubt about how someone's vote is cast or anything like that. You don't use the Autopen for, I don't know, we certainly wouldn't have used it for signing checks.

John Vecchione: No, it's letters. We've gotten you your social security. We've talked to the agency. We've gotten this good result for you. And there's just hundreds of them for constituent service.

Mark Chenoweth: And I don't think anybody would object to it being used for correspondence with the president either. But pardons? Pardons? I think the president needs to sign the pardon himself. I'm very dubious about the use of Autopens in this sort of situation.

John Vecchione: J6, that'd be 6,000, something like 6,000.

Mark Chenoweth: If you want to pardon 6,000 people, sign your name 6,000 times. I just don't have a... Maybe that rule has to be a prospective rule. But as a prophylactic, I think that would be an important guard against abuse of the Autopen by other people around the president. Were there any other takeaways that you had from your involvement?

Margaret Harker: I think an important feature in the cover-up was how certain staff were limited in their ability to access President Biden. And this actually comes into play with the process on the Autopen, because we did interview as part of the investigation on the committee Neera Tanden, who was the staff secretary for Joe Biden. And she told us that...

Mark Chenoweth: She was the Brett Kavanaugh. He was Bush's staff secretary.

Margaret Harker: Well, she only saw President Biden about every four to six weeks when she served in that role. And you contrast that...

John Vecchione: You're kidding. What?

Margaret Harker: I'm not kidding. With Will Scharf, who was President Trump's staff secretary, who you've probably seen in the Oval Office many times handing the Sharpie, identifying what it is that President Biden is citing on camera.

John Vecchione: President Trump is...

Margaret Harker: President Trump, excuse me, that President Trump is citing live on television for everyone to see.

John Vecchione: The staff secretary. That is stunning.

Mark Chenoweth: Every four to six weeks. Yeah, I've got to go talk... So, I'm friends with President Obama's staff secretary. So, now I got to go ask him, Doug, what's the story? Did you only see President Obama every four to six weeks? Because I'm going to guess the answer is no.

John Vecchione: And you know that when Kavanaugh was being confirmed, because everything passes through the staff secretary's hands, the Senate Democrats or the Senate Republicans, whoever it is, whenever a staff secretary gets up there, they say, “We need to see every document he saw,” so that they can go after the president. That's really why they're doing it. He didn't do anything except check his right document. He didn't do anything. He didn't edit those documents. To get to the president, they go through the staff secretary. And how that can be... How you can be staff secretary and not see him for over a month is stunning. It's stunning.

Mark Chenoweth: That's the most stunning thing you've said, actually, to me.

Margaret Harker: There are many of them. It's hard to keep track of them all. So, I'm glad it came out.

Mark Chenoweth: Yeah, absolutely. Well, thank you very much, Margaret, for joining NCLA and for joining us today on Unwritten Law.

Margaret Harker: I'm happy to be here on both counts.

Mark Chenoweth: You've been listening to Unwritten Law. As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

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Duration: 28 minutes