Biden’s auto-pen pardons disturbed DOJ brass, docs show, raising questions whether they are legally binding

New documents and communications between Biden White House staff and career officials at the Justice Department prompted scrutiny of the legality of former President Joe Biden’s thousands of last-minute pardons.

The Oversight Project shared documents obtained from the Trump DOJ with Fox News Digital showing that a career prosecutor warned Biden’s inner circle that the administration’s pardon process was unorthodox and legally troubling.

In the most scrutinized e-mail, then-Assistant Deputy Attorney General Bradley Weinsheimer wrote a group email to several executive office staff members on Jan. 18 asking questions about the more than 2,500 pardons.

"[T]he White House has described those who received commutations as people convicted of non-violent drug offenses. I think you should stop saying that because it is untrue or at least misleading," Weinsheimer said.

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An autopen, left, and President Joe Biden (Getty Images; Fox News)

"As you know, even with the exceedingly limited review we were permitted to do of the individuals we believed you might be considering for commutation action, we initially identified 19 that were highly problematic," he continued.

He cited convicts Terrence Richardson and Ferrone Claiborne, who were included in the clemency grants, and noted the DOJ received "voluminous" objections from victims’ families and law enforcement as the men had been "sentenced to life imprisonment for drug trafficking offenses during which a police officer was killed."

That, according to Oversight Project vice president Kyle Brosnan, shows DOJ was concerned about the "vague" construct of Biden’s pardons and how they appeared to be "illegally delegated" to staff. They also left the DOJ wondering at times which offenses, for people with multiple convictions, were specifically being expunged.

"Later in the email, he was like, ‘Look, I read the statement you put out in the president's name, saying you've released a bunch of non-violent drug offenders. You've got murderers on your list today. So I'm trying to figure out what the president wants here for this funky warrant.’"

Discussing other documents received, Brosnan and attorney Sam Dewey cited a spreadsheet of convicts with "offenses described to the Department of Justice" for the second of several "collective" or catch-all warrants.

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"I think it best that we receive a statement or direction from the President as to the meaning of the warrant language," Weinsheimer wrote to White House staff. "That will allow us to give full effect to the commutation warrant in the manner intended by the president."

There was ultimately no explanation for what the offenses or the proverbial descriptions were, according to the document tranche, Brosnan said, adding that the DOJ official suggested to Biden staff that "you should stop saying [pardonees were mostly ‘nonviolent drug offen[ders]’] because it is untrue or at least misleading."

Brosnan explained that a spreadsheet of convicts, said to be attached to one of the e-mails, came from the U.S. Sentencing Commission – and only the president has the power to grant pardons. Treating it otherwise, he said, would amount to an illegal delegation of presidential authority.

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To that end, Brosnan pointed to New York Times interviews with Biden in July, wherein the paper reported, "Mr. Biden did not individually approve each name for the categorical pardons that applied to large numbers of people, he and aides confirmed."

"Rather, after extensive discussion of different possible criteria, he signed off on the standards he wanted to be used to determine which convicts would qualify for a reduction in sentence."

"High-profile" pardon recipients like retired Gen. Mark Milley were discussed directly with aides.

"Biden did not pardon individual people, but laid out categories of types of people to release and left it to the staff to figure out who meets that criteria," Brosnan said, adding that many warrant documents were also found to be auto-penned.

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Dewey told Fox News Digital the situation was "worse than that" – because "literally no one," including DOJ officials, "understands what the [aforementioned pardon] criteria are." 

"You generally don’t see people write emails like this," he said. "This isn’t a ‘CYA’ – this is an ‘I’m going to do a Pontius Pilate routine because this is a drug deal and I want to make very sure it doesn’t come back on me."

The entire situation, Dewey said, also has a precedent for such pardons being considered "invalid" going back to "before we were even a country."

"If the pardon is invalid, it falls, and then you proceed as if there was no pardon."

Biden previously defended his pardons, saying that he wanted to undo "disproportionately long sentences compared to the sentences they would receive today under current law, policy, and practice."

"[This] clemency action provides relief for individuals who received lengthy sentences based on discredited distinctions between crack and powder cocaine, as well as outdated sentencing enhancements for drug crimes," Biden said in a statement. 

"This action is an important step toward righting historic wrongs, correcting sentencing disparities, and providing deserving individuals the opportunity to return to their families and communities after spending far too much time behind bars."

Fox News Digital reached out to DOJ and a representative for Biden for further comment.

The Associated Press contributed to this report.