[Senate Hearing 119-186]
[From the U.S. Government Publishing Office]
S. Hrg. 119-186
UNFIT TO SERVE: HOW THE BIDEN COVER-UP
ENDANGERED AMERICA AND
UNDERMINED THE CONSTITUTION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
JUNE 18, 2025
__________
Serial No. J-119-24
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
61-845 WASHINGTON : 2026
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois,
JOHN CORNYN, Texas Ranking Member
MICHAEL S. LEE, Utah SHELDON WHITEHOUSE, Rhode Island
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
JOSH HAWLEY, Missouri CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana MAZIE K. HIRONO, Hawaii
MARSHA BLACKBURN, Tennessee CORY A. BOOKER, New Jersey
ERIC SCHMITT, Missouri ALEX PADILLA, California
KATIE BOYD BRITT, Alabama PETER WELCH, Vermont
ASHLEY MOODY, Florida ADAM B. SCHIFF, California
Kolan Davis, Chief Counsel and Staff Director
Joe Zogby, Democratic Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Grassley, Hon. Charles E......................................... 1
Prepared statement........................................... 38
Durbin, Hon. Richard J........................................... 2
Cornyn, Hon. John................................................ 4
Schmitt, Hon. Eric............................................... 6
Welch, Hon. Peter................................................ 9
WITNESSES
Harrison, John................................................... 12
Prepared statement........................................... 41
Responses to written questions............................... 55
Spicer, Sean..................................................... 15
Prepared statement........................................... 48
Responses to written questions............................... 58
Wold, Theodore................................................... 14
Prepared statement........................................... 51
Responses to written questions............................... 59
APPENDIX
Items submitted for the record................................... 67
UNFIT TO SERVE: HOW THE BIDEN COVER-UP
ENDANGERED AMERICA AND
UNDERMINED THE CONSTITUTION
----------
WEDNESDAY, JUNE 18, 2025
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:15 a.m., in
Room 106, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley [presiding], Cornyn, Cruz,
Hawley, Tillis, Kennedy, Blackburn, Schmitt, Britt, Moody,
Durbin, and Welch.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Good morning. I would like to welcome
everyone to this Judiciary hearing. We have multiple Member
statements today, so without objection, I will introduce my
longer statement into the hearing record.
[The information appears as a submission for the record.]
Chairman Grassley. Today's hearing is about competency,
corruption, and coverup within the Biden administration. Simply
put, the last administration was rudderless. From one crisis to
another, the Biden administration failed and faltered. The
partisan media did their best to cover up those failures.
Having discussed these issues with my colleagues, Senators
Cornyn and Schmitt, who requested to lead this hearing, all of
us agreed that this Committee must discuss this important
matter.
An important part of this discussion involves the last
administration's weaponization of law enforcement against Trump
and his associates, which was done to try and win an election.
That, too, they tried to cover up. Since I became Chairman of
this Committee, my investigative work has exposed how
weaponization was done. Look at the FBI's Arctic Frost
investigation, which ultimately became one of Jack Smith's
cases against President Trump, based upon records that I have
made public. The case's origin was anti-Trump FBI agent
Thibault and his merry band of artisans and partisans. The
records indicate that the opening of Arctic Frost was an
intentionally designed vehicle by which the Biden
administration would ultimately prosecute their primary
political opponent, President Trump.
Then I made emails public relating to the Biden
administration's political investigation into Peter Navarro.
Thibault and his other anti-Trump agent, Walter Giardina, were
also involved in that case. Whistleblowers have told me that
Special Agent Giardina openly stated his desire to investigate
Trump, even if it meant false predication. Whistleblowers have
also told me that Jack Smith's deputy, J.P. Cooney, wanted to
open more cases on Trump. He allegedly justified using
compulsory process to obtain more information merely based upon
partisan news outlets. And guess who was also allegedly
involved in those communications? Well, that is the same
person, Special Agent Walter Giardina.
All of this is more evidence of law enforcement
weaponization that would have never been the light of day but
for whistleblowers. I will have more to say about this matter
later today in another forum.
Then we have the Biden FBI's anti-Catholic Richmond memo.
That memo used the shoddy research of the radical Southern
Poverty Law Center to accuse traditional Catholics of being
violent extremists. Based on the records that I released the
other week, there wasn't just one FBI document they used bias
anti-Catholic sources but over a dozen. And more FBI field
offices were involved than we have been led to believe.
It wasn't just the Biden and Wray FBI that failed the
people. Recently, I released a record showing that the Biden
Health and Human Services also failed to address the backlog of
over 65,000 reports expressing concern for unaccompanied
children. This included 7,346 reports related to trafficking.
Three dozen cases have been accepted by U.S. attorneys for
prosecution with 11 arrests and three convictions so far.
The Biden administration had a responsibility to do right
by the American people. By any metric, they failed. The
question is, what did the President actually know or even
understand who was actually running the Government? But
regardless, the buck stops with the President, and President
Biden will have to answer to history for what has happened the
last 4 years.
Now, I am going to turn over the opportunity to speak to
Ranking Member Durbin for his opening remarks. And after that,
Senator Cornyn is going to take the Chair and Senator Cornyn
and Chairman Schmitt are going to lead the rest of the hearing.
Proceed, Senator Durbin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you, Chairman Grassley.
This Committee has oversight responsibility over the
Department of Justice, the Federal Bureau of Investigation, and
the Department of Homeland Security. We have a constitutional
duty to hold these agencies accountable with public hearings.
By this date in my first year as Chairman of the Senate
Judiciary Committee, we had already held two major oversight
hearings with Biden administration agency heads, including one
with the FBI Director Wray on domestic terrorism threats. So
far this year, the Republican majority in this Committee has
not held a single oversight hearing, despite numerous critical
challenges facing the Nation that are under our jurisdiction.
In the last week alone, several events have demanded this
Committee's immediate attention: the horrific assassination in
Minnesota, the treatment of our colleague Senator Padilla by
Federal agents in Los Angeles, and President Trump's
unprecedented deployment of the U.S. military in Los Angeles.
We should hear without delay from Attorney General Bondi and
FBI Director Patel about what they are doing to address the
unacceptable political violence in our country, including
threats to Article III judges and justices, as well as Members
of Congress. And we need to hear from the Homeland Security
Secretary Noem about the treatment of our colleague Senator
Padilla and this administration's mass deportation campaign
against immigrants.
But instead of exercising this constitutional oversight
duty, my Republican colleagues are holding this hearing.
Apparently, armchair diagnosing former President Biden is more
important than the issues of grave concern which I have
mentioned. To take a few examples of the issues this Committee
should be addressing, the Trump administration has removed
dozens of senior career prosecutors and FBI officials with
decades of national security expertise, leaving our Nation more
vulnerable to terrorism and other national security threats.
This should be explained to this Committee.
The Justice Department has diverted hundreds of law
enforcement agents away from combating cartels, drug
trafficking, and gun violence to participate in President
Trump's mass deportation campaign. This should be addressed in
an open hearing of this Committee.
The Justice Department is also turning a blind eye to
corruption. The administration has gutted the Department of
Justice's public integrity session which oversees political
corruption just as the President's shameful crypto scheme
unfolds. And the administration has removed Department of
Justice's career ethics officials and shut down the office
charged with investigating misconduct by DOJ attorneys.
With these internal checks gone and this Committee asleep
at the wheel, it is no surprise that Attorney General Bondi
signed off on President Trump to accept Qatar's gift of a $400
million luxury airliner, despite the fact that the Attorney
General was previously a registered foreign agent for the
Qatari Government. We are still waiting for her official
finding on this gift transfer.
And it is no surprise that Department of Justice official
Emil Bove tried to strike a corrupt bargain with New York Mayor
Eric Adams, dropping public corruption charges in exchange for
the mayor's cooperation with Trump agenda mass deportations.
When it comes to these historic, compelling issues, the GOP
majority tells America to move along, nothing to see here.
Let's revisit this administration of a previous President in
this hearing. Let's revisit a 20-year-old precedent on the use
of an autopen.
And I know my Republican colleagues are eager to discuss
President Biden's pardons, but why are they ignoring the actual
pardon crisis that is taking place right now, President Trump's
pay-to-play scheme? Last month, President Trump pardoned Paul
Walczak, who pleaded guilty in 2024 to withholding over $7
million of taxes from his employees' paychecks and failing to
pay them to the Internal Revenue Service. What warranted Mr.
Walczak's swift pardon by President Trump? His pardon
application explicitly cited millions of dollars his mother
raised for President Trump's campaigns and other efforts to
support the President.
But that was not enough. It was 3 weeks after Mr. Walczak's
mother attended a million-dollar-a-person Trump fundraiser in
April of this year that Mr. Walczak was miraculously receiving
his pardon, and now he no longer must pay $4.4 million to the
taxpayers of this country. That is one example of the many
pardons granted to President Trump's wealthy donors and
political supporters.
Of course, these pay-to-play pardons are in addition to
more than 1,500 January 6 rioters who received a blanket pardon
from President Trump, including 169 who violently assaulted law
enforcement officials.
And we are going to make a question of cognitive ability? I
think we should consider what happened in Alberta, Canada, just
this week where President Trump was at a press conference with
British Prime Minister Keir Starmer and said the following,
``You all know the great PM of the U.K., and we just signed a
document,'' President Trump continued. ``We just signed it so
we have our trade agreement with the EU.'' Britain has not been
a party to the EU for 5 years, but President Trump made a
statement which clearly was wrong.
Now, I would like you to see a short video that includes
some other examples of cognitive ability.
[Video is shown.]
Senator Durbin. Do any of these statements raise a question
of cognitive ability? You be the judge. If my colleagues are
truly interested in issues of Presidential succession and
disability under the 25th Amendment, I would suggest they
embark on this constitutional journey with a proposed
amendment, not today's political adventure.
I yield.
OPENING STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Good morning. I want to thank Chairman
Grassley for convening this hearing and my colleague Senator
Schmitt from Missouri for co-chairing this with me as we
examine the constitutional crisis posed by the coverup of
President Biden's cognitive decline.
The U.S. Constitution provides, as we all know, for three
co-equal branches. Today, we are concerned about the Chief
Executive, the President of the United States. As we know, the
Chief Executive, the head of the executive branch, enforces the
laws, appoints high-ranking officials, serves as Commander-in-
Chief of our armed forces, can issue pardons, and can veto and
advocate for legislation. But what are we to do when the
President is incapable of performing these duties?
Last June, the American public saw with their own eyes what
many knew to be true but would not dare to admit publicly. Our
sitting Commander-in-Chief was suffering from severe cognitive
decline, as evident by this video, which I will now show.
[Video is shown.]
Senator Cornyn. As we now know, there was a conspiracy to
hide the President's true condition by his family, by his
staff, by the media, and many elected officials. Jake Tapper
and Alex Thompson, who co-authored a book entitled Original
Sin, that book amounted to a mea culpa by the mainstream media.
But they summed up the problem when they wrote this: ``What the
world saw at Joe Biden's one and only 2024 debate was not an
anomaly. It was not a cold. It was not someone who was under-or
overprepared. It was not someone who was just a little tired.
It was the natural result of an 81-year-old man whose
capabilities had been diminishing for years.'' Biden, his
family, and his team let their self-interest and their fear of
another Trump term justify an attempt to put an at-times addled
old man in the Oval Office for four more years.
So make no mistake about it, this was a constitutional
crisis bigger than President Biden, bigger than any single
election, and one that cannot be absolved by the collective
apology of the press and an election where the President's
party lost.
Current events such as we are experiencing today in the
Middle East are a prime example of why we need a President with
his full cognitive abilities making important decisions
involving war and peace. We should know, but we don't yet know
precisely what should happen when a President is unable to
perform his or her constitutional duties, and that is the
purpose of today's hearing.
There are many unanswered questions from this scandal,
questions that the authors of Original Sin fail to address in
their book, questions that are foundational to the proper
functioning of our Government. We will address those here and
shine a light on exactly what went on in the White House during
the Biden Presidency. We simply cannot ignore what transpired
because President Biden is no longer in office.
With a compromised President, our Government's very
legitimacy and capacity to function was undermined. The
American people paid a price, from President Biden's handling
of the border crisis to the disastrous events we saw unfold in
Afghanistan. It is absolutely imperative that Congress grapple
with these difficult questions, no matter how much our
Democratic colleagues would like to simply sweep it under the
rug.
We need to know who was in charge during the last months of
the Biden administration. Was it his wife, his chief of staff,
nameless others? None of these people were elected by the
American people, nor were they authorized by the Constitution
and laws of the United States to carry out the duties of the
President of the United States.
The 25th Amendment provides a roadmap for succession in
instances of Presidential incapacity. Section 4 gives the Vice
President and a majority of the President's Cabinet the
authority to challenge the President's ability to carry out the
functions of his office subject to a vote in Congress. But in
this instance, the Vice President and the cabinet, the very
ones authorized by the 25th Amendment to question the
President's capacity, they did nothing.
Are there penalties when the cabinet and the Vice President
refuse to carry out their duties under Section 4 of the 25th
Amendment? Should there be more accountability? The framers of
this amendment acknowledged that the execution of that
amendment would depend on the good faith of the cabinet and the
Vice President. But Biden's Cabinet and the Vice President did
not act in good faith. They acted in their political and
personal self-interest.
This is the great paradox of self-government. Many of the
rules, traditions, and institutions that sustain our republic
are self-enforcing. The health and legitimacy of our democratic
republic rests on the character of the men and women who serve
in government. As a government, it is imperative that we have
clear contingency plans when emergency strikes. And yes, it is
an emergency when we have a sitting President who is unable to
discharge the duties of that office.
The concerns raised by this incident stretch far beyond the
bounds of partisan politics. I will note that few of my
Democratic colleagues are here today. Thank you to Senator
Welch from Vermont for being here, leaving us with no other
option than to take the boycotting of this hearing as an
admission of guilt for their role in this crisis.
We must not turn away from the search for answers. And it
is not an overstatement to say that the future of our country
could one day hinge on how we choose to act or not act on this
very issue.
I look forward to hearing from our witnesses this morning
as we examine the difficult but necessary questions that must
be answered from this monumental scandal.
I yield to my colleague from Missouri, Senator Schmitt, who
will now co-chair the hearing.
OPENING STATEMENT OF HON. ERIC SCHMITT,
A U.S. SENATOR FROM THE STATE OF MISSOURI
Senator Schmitt. Thank you. I do want to begin by
expressing my sincere gratitude to Chairman Grassley for
granting me the privilege of co-chairing this Committee with my
esteemed colleague, Senator Cornyn.
The title of the hearing, ``Unfit to Serve,'' captures a
sobering and undeniable truth. President Biden was mentally
unfit to carry out the responsibilities of the most powerful
office in the world. Given his mental incapacity, the American
people deserve to know who was running the country the last 4
years.
Today, as we seek to answer this question, it is deeply
disappointing, but not surprising, that most Democrats on this
Committee have chosen to all but boycott the hearing and have
failed to call a single witness. They have chosen to ignore
this issue like they ignored President Biden's decline. Their
absence speaks volumes, an implicit admission that the truth is
too inconvenient to face. By refusing to engage in this
critical examination, they abdicate their responsibility to the
American people. This de facto boycott is not just a refusal to
participate. It is a refusal to serve the American people who
deserve answers about who was truly leading their Government.
President Biden's decline did not suddenly begin in June of
2024. It was a persistent and obvious truth that was evident
for years to anyone who was willing to see it. This reality did
not require special insider knowledge or investigative
reporting to uncover. We didn't need Jake Tapper and Alex
Thompson to tell us what millions of Americans could freely
observe with their own eyes. The truth was glaringly obvious.
Anyone who was paying attention could tell that the emperor had
no clothes.
Nearly a year ago, I took the historic step as the first
U.S. Senator to formally call for the invocation of the 25th
Amendment against President Biden. I sent letters to every
cabinet secretary and the Vice President laying out the urgent
case. Our Nation was effectively without a leader.
[Poster is displayed.]
The absence of a functioning President wasn't an abstract
issue. It inflicted severe consequences on our Nation,
consequences that touched every aspect of American life. On
border policy, our Nation's borders were handed over to the
radical left-wing element of the administration, throwing open
our borders to 15 million illegal aliens, an unprecedented
immigration crisis that pulled our Nation into chaos. On
foreign policy, haphazard and reckless discussions, decisions
placed our warfighters in jeopardy, escalated conflicts around
the globe, and led to a catastrophic humiliation on the world
stage that claimed the lives of 13 American soldiers, including
one Missourian, during the disastrous withdrawal from Kabul.
On the economy, rampant inflation drove up the cost of
life's essentials, making them unaffordable to countless
hardworking families. In the realm of culture, the regime
censored free speech, closed down churches, targeted
traditional Catholics and parents at school board meetings, and
let an unelected class of left-wing radicals degrade, attack,
and lie about our history and our heritage. A poisonous anti-
Western, anti-American ideology that had once been confined to
elite university classrooms suddenly became the official White
House policy.
[Poster is displayed.]
All of this was done not in isolation. It was sustained,
defended, and covered for by an alliance of elite institutions
from the media to the so-called expert class, to Big Tech, to
the Federal bureaucracy itself. When we speak of collusion
among elites or the so-called deep state, we are accused of
being conspiracy theorists. But this was no theory. It was
plain and overt, out in the open for everyone to see.
For 4 years, we had a President who could barely string
together coherent sentences after 6 p.m. Yet, this glaring fact
went unreported, undiscussed, and unaddressed. Why? Because the
Democrat Party, corporate media, Federal bureaucracy, and Big
Tech companies collaborated to conceal the truth from the
American people, not out of ignorance, but because it advanced
their own interests. In the absence of a functioning President,
chaos took hold. An empty vessel occupying the Oval Office
becomes a puppet for those surrounding him.
Many elected officials, including some in this Chamber,
have used autopens, a mechanical device that replicates a
signature. There is nothing inherently wrong with that, so long
as we are the ones actually making the decisions. But under
President Biden, the autopen became a troubling symbol, a
symbol of an absentee President in an executive branch directed
by nameless, faceless aides that no one outside of Washington,
DC. had ever heard of and no one ever voted for. It was the
autopen Presidency, a government run by Committee rather than a
leader chosen by the American people.
By contrast, love him or hate him, we all know President
Trump is in command of his Presidency, and he is the one
calling the shots. It is plain as day that President Trump is
actively making the decisions, whether announced via Truth
Social or signature.
Under President Biden, that transparency and certainty
evaporated. We cannot confidently say that the decisions
bearing his signature were the will of the President or his
politburo. That goes doubly for his social media posts,
including his decision to drop out of the 2024 Presidential
election. We did not know if it was his decision or posted on
his behalf after a palace coup because President Biden was
mentally unfit to serve. The corporate media played an
indispensable role in this coverup, systematically suppressing
discussion of President Biden's condition.
As we will demonstrate in the video evidence presented
today, dissenting voices were silenced, and the truth was
buried. It was not a passive oversight. It was a deliberate
campaign to shield the narrative that protected the interests
of the most powerful. Even Members of this very Committee, some
of whom served alongside then-Senator Biden when he Chaired
this very Committee, defended his mental acuity for years.
Now, Jake Tapper and Alex Thompson offer a convenient
narrative to absolve everyone involved. The media lacked
access. The family was overtly protective. The cabinet was
incompetent. And Robert Hur said the President was merely a
well-meaning man in aviators who liked ice cream.
It is the tired, evasive refrain of the politician caught
in a lie. Mistakes were made. Yes, mistakes were made. And
every participant in the coverup, from the media to the
cabinet, is jointly and severally liable for what may very well
be the greatest deception in our Nation's history. Even their
apologies today are framed in a way that absolved them from
responsibility for this crime against the American people. They
apologized for having ``missed the story.'' They didn't miss
anything. They actively chose to ignore or run cover for the
people in power.
The Biden Cabinet rarely met. And some members, like former
Secretary of Transportation, Pete Buttigieg, deliberately
distanced themselves from the President to maintain plausible
deniability.
Even Members of this Committee were part of the great
deception. The Monday after Biden announced he would not seek
re-election, one Member called the idea of invoking the 25th
Amendment ``outrageous,'' insisting the debate performance does
not reflect who he is or his capacity to govern as President of
the United States. Another Member repeatedly vouched for
Biden's fitness, declaring, ``Joe Biden is fit, capable, and
ready to serve another term.'' And later, ``This is a man who
is sharp, who is on top of his game, who knows what is going
on.'' Yet another, during the 2020 Democrat Presidential
primary, alluded to Biden's decline, but quickly retracted his
remarks when it became politically expedient. After the debate,
yet another Member praised Biden's strong delivery of remarks
to NATO as evidence of his capacity to lead.
The purpose of this hearing is not to interrogate Biden
officials or partisan reporters, though they should be held
accountable. Instead, our focus is to identify and rectify the
systemic weaknesses that allowed this situation to fester
unchecked.
Our distinguished witnesses, experts in White House
transparency, operational procedures, and Executive power, will
assist us in diagnosing these flaws. While the House and Senate
pursue factfinding missions to hold these responsible to
account, our mission here is to chart a path forward. We cannot
allow another weekend at Biden's Presidency with its glaring
national security vulnerabilities papered over by an autopen.
The D.C. establishment might argue that the governance of
shadowy, unelected figures is a legitimate substitution for a
functioning President. It is not. The American people cast
their vote for a President, not a faceless apparatus.
Article II of the Constitution vests immense authority in
the President of the United States, a single individual. With
that extraordinary power comes equally profound responsibility.
At the Constitutional Convention, our Founding Fathers debated
giving the President the title of Defender of the Rights of the
American People.
The security and well-being of the American people and
their rights must take precedent over personal ambition. It is
often said that power corrupts. I believe that power reveals.
Over the past 4 years, this coverup laid bare a disturbing
reality. The left and the corporate media placed their pursuit
of power above the welfare of your families and your country.
They dismissed your observations, urging you not to trust your
own eyes.
We have a solemn duty to call this what it is, an
abdication of constitutional duty. As was stated in Federalist
51, ambition must check ambition. If a President is mentally
unfit to serve, we need a dependable mechanism to, at the very
least, ensure that the truth reaches the American people.
I look forward to the insights this hearing will yield and
from our expert witnesses in the discussion that will follow.
The public is counting on us to ensure this never happens again
because we won't always be fortunate enough to have a leader
like President Trump who is so unmistakably in command.
Senator Welch.
OPENING STATEMENT OF HON. PETER WELCH,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Welch. Thank you very much. Senator Cornyn
indicated the view of the hearing is that there was a
constitutional crisis as a result of the coverup of President
Biden's decline. I believe there is a constitutional crisis. It
is the collapse of Congress asserting its Article I authority
to make decisions about the well-being of the American people.
What has this Senate debated in the months that we have
been here, other than nominations? Have we discussed the
possible war with Iran? Have we had a serious discussion on the
floor about the massive and mounting debt? Have we had any
discussion about the abdication of congressional spending
authority by the impoundment actions of an administration? Have
we had a discussion about climate change that is causing havoc
throughout the world? What we have done is gone to the floor
and debate--we haven't debated. We have gone to the floor and
voted on nominations.
There is another issue of great concern to me because I
have enormous respect for my colleagues. Each and every one of
us who was elected, it is the highest honor of our life. Each
and every one of us came here because it is in our bones that
we want to try to do something beneficial and make life better
for the people we represent. And we have different points of
view. But instead of this Congress debating those different
points of view, about oil exploration, or about clean energy,
about a good healthcare system, what we do is turn that debate
into personal accusations of motivations, of coverup, of
conspiracy, of bad character, of demeaning folks who disagree
with us so we never get to the discussion about how do we have
a healthcare system that works for the people in Texas, the
people in Louisiana, and the people in Vermont. We never get to
the discussion about, are we going to deny the reality of what
you know is true, climate change, and how do we address that in
a way that maintains a strong economy and actually builds a
strong economy?
We get into the accusations that if you disagree with me,
you are a left-wing radical. We get into these discussions that
if you disagree with me, you are a Marxist. We get into these
discussions that fan the perception of the people we all
represent, who desire nothing more than be able to take care of
their families, live with some security, make a contribution in
the communities where they live, that if a person disagrees
with you, they are a bad person. We will get nowhere with that
approach.
Now, so many of the things that happened in the Biden
administration I totally supported, and many of you totally
opposed. Those are policy disagreements. He came in with COVID.
We got through COVID. We can debate about how we did it, but
that was an accomplishment. The American Rescue Plan, we had
the biggest jobs creation in the history of the country. The
Chips and Science Act, acknowledging that we have to have a
strong economy and be able to have the best chips here
manufactured in the United States, we did that. The Federal
Disaster Program improved significantly, and I can go on and
on.
And I will take up something where we didn't do well, and
that is immigration. You won that argument, but does it mean
that those who disagreed with you along the way were bad
people, should be labeled Marxist, should be condemned?
The American people ultimately get to decide, but to the
extent that we have a responsibility that we share, Republicans
and Democrats, whichever side of the issue you are on, it is to
debate the issue and not debase the people who are in the
debate.
That is what I see is the crisis that we are facing in this
Congress, our refusal to engage in the serious discussion about
the issues that are having such an impact on the people we
represent.
And I am going to tell you what I think is a coverup. I
think this Big Beautiful Bill done by reconciliation, whereby
decision of the majority, not a single member of the minority
who represent half of the citizens of this country can even be
in the room when the terms and the policies are being debated.
We are not there.
That is what I call a coverup because our responsibility,
our responsibility to the people we all represent is to debate
healthcare, is to debate our budget, is to debate about the
debt that we are going to be leaving future generations. And
there is no debate in what is going to be decided in the
private backrooms amid discussions, not even of all the
Republicans, but of some Republican leaders. That is what is
going to have a lasting impact on the people every one of us
represents, whether it be in Missouri, Texas, North Carolina,
or Louisiana, or Vermont. We can't even do our jobs because we
are not allowed to be in the room.
So, sure, we can enjoy the pleasure of looking back at the
Biden administration, and then getting into the weeds about
when and where and how the President was acting at any given
moment. But, you know, I asked myself before I get into a
debate, and before I do anything, why am I doing it? And if I
do it, does it have the potential to make things better for the
people I represent? And if the answer is no, it doesn't have
any opportunity to help the folks in Vermont, I just shut up.
That is what I do because it won't help. What we are doing
right now won't help. It will not help.
And I asked myself, why in the world are we doing it? But
we know the answer to that, because the politics that has been
embraced in this Congress is the politics of accusation, of
demeaning adversaries, of deflecting from engaging in the hard
discussion about hard issues and trying to come to some common
agreement that is going to be to the mutual benefit of all of
the people that we represent.
I yield back.
Senator Schmitt [presiding]. Thank you. We will now
introduce the witnesses. First up, from my left to right, John
Harrison.
John C. Harrison is the James Madison Distinguished
Professor and Class of 1941 Research Professor at the
University of Virginia School of Law. He is a graduate of the
University of Virginia and Yale Law School.
After graduating from law school, he engaged in the private
practice of law, then clerked for Judge Robert Bork on the U.S.
Court of Appeals for the D.C. Circuit. From 1983 to 1993, he
worked at the U.S. Department of Justice, including as deputy
assistant attorney general in the Office of Legal Counsel. He
joined the law faculty at the University of Virginia in 1993.
In 2008, he was on leave from the law school to serve as
counselor on international law and legal advisor to the United
States Department of State. His principal academic fields are
structural constitutional law, administrative law, Federal
courts, and constitutional history.
Skipping over the empty seat to Theo Wold, Theo Wold is a
visiting fellow for law and technology policy at the Heritage
Foundation. Wold is the former solicitor general of Idaho.
Previously, Wold served as the acting assistant attorney
general in the Office of Legal Policy at the Department of
Justice and deputy assistant to the President for domestic
policy under President Donald Trump.
Wold clerked at the U.S. Court of Appeals for the District
of Columbia Circuit for Judge Janice Rogers Brown and the U.S.
District Court for the District of Puerto Rico for Judge Jose
Fuste. Wold is an intelligence officer in the United States Air
Force. Wold holds degrees from Georgetown University where he
studied government and English and from the University of St.
Andrews where he studied English literature and a JD from the
University of Notre Dame. Mr. Wold and his wife have five
children and live in Boise, Idaho.
Sean Spicer, Mr. Spicer served as the 30th White House
press secretary, is the author of four best-selling books, and
the host of the Sean Spicer Show. Mr. Spicer previously served
as Communications director and chief strategist of the
Republican National Committee and worked for several Members of
Congress. He currently serves on the Board of Visitors of the
U.S. Naval Academy, holds master's degrees from the U.S. Navy
War College, and is in his 26th year of service in the U.S.
Navy. Mr. Spicer is a native of Rhode Island and resides in
Virginia.
It is the tradition of this Committee that all witnesses
will be sworn in. If you would please rise, I will swear you in
now. Raise your right hand.
[Witnesses are sworn in.]
Senator Schmitt. Thank you. And now we will start with you,
Mr. Harrison, with your opening statement.
Senator Schmitt. Press your mic there. Thank you.
STATEMENT OF JOHN HARRISON, THE JAMES MADISON DISTINGUISHED
PROFESSOR OF LAW; CLASS OF 1941 RESEARCH PROFESSOR OF LAW, THE
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VA
Professor Harrison. Thank you, Senator Schmitt, Senator
Cornyn. The Committee has asked me to discuss Congress' power
to regulate the process by which the President's signature is
affixed to a document other than a bimanual signature, that is
to say the use of an autopen or similar technology. I have four
points to make.
The first is that the Constitution and the laws generally,
when they require that the President act by signing a document,
do not require that the President manually sign the document.
The Justice Department's Office of Legal Counsel wrote an
opinion on that subject in 2005, which is quite extensive, and
I find it persuasive.
The concept of signature is signing a document is more
general than--like a lot of concepts, more general than its
central application. The central application is manual
signature, but that is not the only way by which someone can
sign a document. Someone can also sign a document by indicating
that the person signing the document has decided that that
person's signature should be affixed to the document by some
process other than manual signature.
The second point is that as a general matter, Congress has
power to carry into execution the constitutional powers of the
other branches of Government. The last power that is conferred
on Congress by Article I, Section 8, is the end of what is
called the Necessary and Proper Clause, and it provides that
Congress shall have power--I will read the whole clause--``to
make all laws which will be necessary and proper for carrying
into execution the foregoing powers,'' that is Congress' other
powers there, in Article I, Section 8, ``and all other powers
vested by this Constitution in the Government of the United
States or in any department or officer thereof.''
That's the last part. That's the part that is relevant
here. It is sometimes called the Horizontal Necessary and
Proper Clause because it operates horizontally among the three
co-equal branches. Congress is the legislature. There are times
when one of the other constitutional powers can use support
that can be given only by the force of law, and that is
something that Congress can do with the Horizontal Necessary
and Proper Power.
The next thing I'll say is there are some principles, I
think, that should govern exercises of the Horizontal Necessary
and Proper Power. The first is that it operate to support, to
assist, to make--cause to function better the power that is
being carried into execution, be it that of the President or
that of the Federal courts.
The second is that, in supporting the other powers,
Congress not seek to exercise powers that are vested elsewhere,
like the power to decide cases, like the President's power of
pardon.
And third, when Congress exercises that power, it should
make sure not to put substantial burdens on the exercise of the
other powers that it is seeking to support, powers that, once
again, are vested elsewhere than Congress--than in Congress or
by the Constitution.
I think Congress can regularize the process by which the
President's signature is affixed without his manual signature
in a way that would be consistent with Congress' Horizontal
Necessary and Proper Power. In particular, Congress can require
that when the President indicates that his signature is to be
affixed to a document without manual signature, that that
decision by the President be documented and the--some
individual record that the President has made that decision and
that be made part of the public record, say, by being published
in the Federal Register or the Weekly Compilation of
Presidential Documents.
A statute like that would carry the President's power into
execution because making sure that the President really has
made a decision and that it wasn't made by someone else with
the President's--someone else with the President's autopen is a
way to make sure that the power is properly exercised, that is,
by the President. As long as a statute like that is completely
neutral, applies the same way to all Presidential decisions, it
shouldn't raise any problem of Congress trying to control the
President's authority. Again, constitutional power is vested in
the other branches and supported by Congress under the
Horizontal Necessary and Proper Power.
And third, a requirement of documentation. Well, the White
House does a lot of documents. The requirement of documentation
would not place a substantial additional burden on the
President and the processes by which the President acts. And I
would suggest that if the Committee consider legislation along
these lines, that it inquire into the paper flow process
currently used in the White House so that any statute Congress
enacts will make that process work better rather than burdening
it, making it not work as well.
Thank you.
[The prepared statement of Professor Harrison appears as a
submission for the record.]
Senator Schmitt. Thank you. Mr. Wold.
STATEMENT OF THEODORE WOLD, VISITING FELLOW FOR LAW AND
TECHNOLOGY POLICY, THE HERITAGE FOUNDATION, BOISE, ID
Mr. Wold. Senator Cornyn, Senator Schmitt, Members of the
Committee, thank you for the opportunity to testify this
morning about how the coverup of President Biden's mental
decline endangered America's national security and undermined
the Constitution.
The U.S. Constitution vests Executive power in a single
person, the President. At the founding, the President exercised
the Executive power through only a small group of trusted
advisors and personnel. In fact, President Washington had a
four-member cabinet. Today, the President directs a Leviathan
executive branch with 15 cabinet departments and at least four
million full-time executive branch employees.
The executive branch proliferation has a single source of
democratic legitimacy, that by order of U.S. Constitution's
Article II, the President is both elected by the American
people and vested with the Executive power, all of it.
Traditionally, the President takes positive actions and
authenticates those actions through his signature. His
signature is required for the most significant actions he may
undertake, to sign an Executive Order, to take any action
invested in him by the Constitution, as in granting a pardon,
and to take the most important action of all, to sign a bill
into law. In all these cases, the President's signature is
itself the protection of democratic principle. When the
President signs, he communicates his assent and endorsement of
the action he takes.
The autopen is a device that signs the President's
signature to a document. The Oversight Project, of which I am a
board member, has discovered that the Biden White House
deployed an autopen to affix President Biden's signature to
pardons, prison commutations, Executive Orders, and
Presidential proclamations. The Oversight Project's research
has found that the Biden White House first deployed the autopen
to affix President Biden's signature to a proclamation on day 5
of his administration, and that there were at least three
different autopen signatures in use throughout President
Biden's tenure in the White House.
In June 2022, the Biden White House began deploying the
autopen to sign clemency warrants and Executive Orders. Autopen
use skyrocketed from there. We found that of the 51 clemency
warrants issued during the Biden Presidency, over half, 32 in
total, were signed with an autopen. And these include some of
the most controversial acts of clemency of the Biden
Presidency, including death row commutations and the preemptive
pardons of members of the Biden family, Dr. Anthony Fauci,
General Mark Milley, and more that were issued in the final
days of the Biden Presidency.
We reviewed President Biden's schedule and his publicly
available media and were unable to find any record of President
Biden's personally approving these actions, such as a statement
issued by the President himself to reporters. In addition, we
found that the Biden White House used the autopen to affix
President Biden's signature to clemency warrants and Executive
Orders while the President himself was in Washington, DC, for
at least some of that day, and thus was presumably available to
sign important executive actions. Finally, we found multiple
days where President Biden wet-signed a bill into law, but used
an autopen to issue an Executive Order or for other important
executive actions.
The Biden White House's widespread use of an autopen to
affix President Biden's signatures to documents that exercise
Executive powers belonging solely to the President poses
significant constitutional, legal, and practical
considerations. Once the President's signature is copied and
loaded into the autopen, the machine can sign documents as the
President himself would. To be blunt, by using the autopen,
anyone can sign documents as the President himself.
Now, to be clear, I'm not here today to suggest that the
autopen is bad. It's just technology. I'm here today because of
questions concerning President Biden's capacity and whether the
autopen was used to usurp Presidential power or to conceal the
President's decline.
As the sitting President's mental acuity declined,
potentially to the point of incapacitation, his
administration's expansion of the powers of the Presidency
raises more questions than answers. Any investigation into this
matter should focus not only on whether President Biden
directed or authorized subordinate staff to take action in
certain instances but whether he had the capacity to do so at
all.
The 25th Amendment lays out clear procedures for what to do
when the President is incapacitated. It was carefully drafted
and informed by our Nation's history. The Biden administration
ignored it all to aggrandize Executive power and push the
country further in their preferred ideological direction.
It is our obligation at this point at--to get to the bottom
of these issues and to ask the important question as to whether
or not the autopen and other devices were used to cover and
obscure President Biden's mental decline, undermining our
national security and also the Constitution.
Thank you for the opportunity to testify this morning.
[The prepared statement of Mr. Wold appears as a submission
for the record.]
Senator Schmitt. Right on time, pretty impressive. Thank
you. Mr. Spicer.
STATEMENT OF SEAN SPICER, FORMER WHITE HOUSE PRESS SECRETARY,
HOST, THE SEAN SPICER SHOW, ALEXANDRIA, VA
Mr. Spicer. Chairmen Schmitt and Cornyn, Members of the
Committee, thank you for having me. I was asked to share my
experience as a senior White House staffer with respect to the
interactions that I and other senior staff had with President
Trump during his first term.
During my tenure as press secretary, I interacted with the
President multiple times every day. Most days, I would talk to
him by phone or in person early in the morning and then
multiple times throughout the day, including weekends. For the
most senior positions in the White House, those designated by
the rank of assistant to the President, which includes the
White House chief of staff, the White House counsel, and the
press secretary, it is critical to have regular interaction
with the President.
The position of press secretary especially demands this
type of consistent and intentional communication. I or any
other press secretary, regardless of administration, could not
do the job effectively without regular communication with the
President. It was my responsibility to have the most up-to-date
understanding of President Trump's position on policy,
personnel, and everything in between.
Admittedly, I made a couple of rather high-profile mistakes
during my tenure. You may have read some of them. But in all
cases, those mistakes occurred when I wasn't connected with the
President's thinking or position on a particular issue or
policy. Coordinating and collaborating among even the most
senior staff cannot replace direct communication with the
President himself.
In my position, I was very well acquainted with the
President's work, his day-to-day responsibilities, and his
fitness for office. I watched him serve with the strength and
endurance of a man half his age. As you can see on almost a
daily basis through events, statements, and social media posts,
he is up early and ends his days very late.
Yet in several instances during his first term, the media
questioned his fitness for office. Guests and so-called
experts, like Sanjay Gupta at CNN, were called upon to
speculate on the result of Trump's physical and mental well-
being. The Washington Post ran hit pieces with headlines like,
``The White House struggles to silence talk of Trump's mental
fitness.'' Vox wrote, ``Is Trump mentally unfit to be
President?'' NBC ran a story by the Associated Press that
raised mental health concerns regarding the President. CNN's
Brian Stelter questioned if members of the news media were
``tiptoeing around obvious questions about President Trump's
instability.'' These headlines were not isolated instances.
Most major news outlets ran with these ridiculous type of
propaganda pieces. To use one of the media's favorite terms,
these inquiries were without evidence.
That brings us to the juxtaposition of how the very same
media covered the Biden administration. To be blunt, the legacy
media failed the American people. They failed to do their job.
Many, rightly so, believe the media in this country is culpable
in covering up the obvious decline of the 46th President of the
United States. The scrutiny that was baselessly directed at
President Trump during his first term was wholly absent from
the media coverage of the Biden White House. The media lacked
any sense of curiosity that would naturally stem from what the
public could see with their own eyes.
Even in the face of deeply concerning and public signs of
President Biden's mental and physical decline, legacy media
outlets were silent. Biden and his senior aides flatly
dismissed the need for a cognitive test during his tenure, as
had been requested of President Trump. Yet no protest was heard
from the voices that were so critical of Trump. With the
exception of a couple White House reporters, like Fox News
Channel's Peter Doocy, reporters generally refused to breach
the subject at White House briefings.
News outlets weren't the only ones complicit in covering up
Biden's decline. Presidential staff would have or should have
been interacting with Biden on a daily basis. At best, his
administration was grossly negligent. At worst, Biden's staff
actively concealed his fitness for office.
When White House Press Secretary Karine Jean-Pierre said
President Biden could run circles on her, there were only two
possible conclusions, that she herself was in poor health and
in need of medical assistance or that she was lying. There is
no question that a vast difference between how President Trump
interacted with his staff and how President Biden did.
When one--whether one supports President Trump or not, he
is clearly the most accessible and transparent President in
modern history, and there is no question who is running this
country. The same cannot be true--said of President Biden.
It is the President who is elected by the American people.
The role of staff is to execute his agenda and policies. I
thank the Committee for holding this hearing so that, going
forward, the American people can have the confidence in who is
running the country and making critical decisions. The American
people deserve no less.
[The prepared statement of Mr. Spicer appears as a
submission for the record.]
Senator Schmitt. Thank you for those opening statements.
The minority did not call any witnesses for today's hearing.
They have chosen to ignore the hearing, as they chose to ignore
President Biden's mental decline, but we do have a short video
of some previous statements from Biden administration officials
and Democratic Party officials telling us not to believe our
lying eyes.
You can play the video.
[Video is shown.]
Senator Schmitt. Okay. Professor Harrison, I do want to ask
you a couple questions. I just wanted you to presume for a
moment that a pardon was issued under President Biden's autopen
signature but issued without his direction. It comes to light
that he actually didn't direct it. A member of his staff used
the autopen for a pardon. What recourse is available under
those circumstances?
Professor Harrison. Senator, I think there would be two
questions. The first has to do with whether--and I don't--I
can't answer it other than to identify the question, which is
to say sometimes documents that are properly authenticated are
treated as having been validly issued even when they're not.
That can happen. There are legal rules that produce that
result. And I don't think there is such a rule about a pardon,
but I would have to inquire into that, again, because there are
such rules.
The other thing I'd say is that for a pardon particularly,
the only situation I can think of that clearly would bring into
question whether the pardon was valid, which was the first
question, was if the Government sought to prosecute someone and
the person reportedly received the pardon, offered the pardon
as a defense, then the Government might say that, no, the
pardon was invalid and therefore you weren't pardoned. You're
still subject to prosecution. There might be some other way for
a question like that about a pardon to come up. I can't think
of another, but that is the one I can think of.
Senator Schmitt. So from your perspective, let's just say
that if there isn't any other legal recourse other than the one
that you sort of brought up, what advice would you give to this
Committee or this Congress or this Senate to address that? What
remedies could the legislative branch enact?
Professor Harrison. It's hard to think of anything Congress
can do ex post. That's why I do think that it would be
advisable ex ante to improve the process of authentication and
make it more clear that documents that are signed by autopen
really do reflect a decision by the President. That done in
advance will make whatever the authentication system is more
reliable.
Senator Schmitt. Mr. Wold, given sort of the role that you
played in trying to provide more transparency of what happened
during the 4-years under Joe Biden, who was running the country
under Joe Biden? Let's just take the last 2 years.
Mr. Wold. It's a great question, Senator. And at some
level, I am not the right witness for this hearing. I mean,
there should be members of the media here, maybe some of your
Senate colleagues who had known the President over the years
and obviously had close proximity during the time of his
administration and obviously his staff.
I think, you know, sort of aligned with your previous
question, there is a real consideration here on authentication.
And in my time in the first Trump White House, there was an
exhaustive process to determine how paper flowed into the Oval
and when the President had given his assent to a certain
action. That was through, in fact, two different policy
channels, the staff secretary, and then there was also an
office, essentially a policy management guiding the flow of
documentation.
If the Biden administration staffers and personnel wanted
to put this to bed, they could very easily dispel all of this
by saying, here are the documents that show the President
assented to these actions. The Trump administration would have
that. Previous administrations would have that. And if that's
not there, then there is cause to improve the way that
executive branch employees authenticate actions undertaken by
the President.
Senator Schmitt. Yes, I mean, the President actually
performing the functions of President is kind of an important
thing in our constitutional order. You had, kings used to affix
their seal to show that this was an official declaration from
the sovereign in this country, the sovereign or the people.
They delegate, you know, the authority to their elected
representatives.
And as you mentioned in your opening statement, there is
only one person elected by everybody. So that signature--this
is not just a small point. That signature issuing a pardon for
someone who'd been convicted of a crime or in the case of Joe
Biden, these preemptive pardons, which are sort of
unprecedented, is a big deal. And I think that is part of the
reason why we are here today.
Mr. Spicer, I wanted to ask you, you alluded to this, but
the media is so desperate to make sure President Trump never
got back into office. Of course, you saw the lawfare that took
place, but then of course this narrative that Joe Biden was
fine, don't believe your lying eyes and told that they couldn't
deny it anymore based on the debate. Could you just kind of
compare that to your experience when you were, you know, press
secretary for President Trump to sort of the inquiries that
were made daily about his mental acuity versus the inability to
do that during the 4-years under Joe Biden?
Mr. Spicer. Well, Senator, in many cases, there was no
inquiry. They would just run with a story, having guests on
that would question his physical or mental acuity, speculate on
it, bring guests on that would speculate it. We would often
then push back on those kinds of stories.
That is in vast contrast to the lack of any kind of
curiosity that existed throughout the 4-years of President
Biden. And I think the difference was they would seize on the
simplest thing with President Trump, whereas in President
Biden's case, there was multiple issues of physical, mental
confusion, him going in the wrong direction, him falling down,
him misunderstanding an event or not being able to finish a
sentence. That was never the case with President Trump. They
were almost manufacturing instances in his case without
actually trying to get to the bottom of a story or inquire
within the press office to get our response. They would go with
the story, then we would push back.
With Biden, my understanding from the conversations that I
would have with the media is they would never ask. They just
literally were basically afraid to go there.
Senator Schmitt. Senator Cornyn.
Senator Cornyn. Professor Harrison, it strikes me when
talking about the autopen, there are really two issues. One is
the mechanical use of an autopen in lieu of an actual signature
by the President. But it seems to me that we are confronted
with more important or more fundamental issues is did the
President know that the autopen was being used for that
purpose?
And so one would be--if somebody stole the autopen and was
signing pardons on behalf of the President, but what we are
confronted with here is really the capacity of the President of
the United States to understand what he was supposed to be
doing.
And just thinking about other areas of the law where
capacity is important, and whenever it comes to people writing
a will, let's say, for example, disposing of their property to
their children and grandchildren, occasionally, there arises
the issue of testamentary capacity by the person disposing of
their property. And generally speaking, to have testamentary
capacity, that person must understand they are signing a will,
they comprehend the nature and the extent of their property,
they recognize their relationships with potential
beneficiaries, and understand how the will disposes of their
assets. So why can't we have a similar inquiry into the
executive capacity, let's say, of the President of the United
States to actually know what he or she is doing?
Professor Harrison. Senator, you're absolutely right that
that question, whether the President or somebody else who holds
official power has the legal capacity to exercise it, is
distinct from authentication of documents. Authentication of
documents is important, but capacity is another question.
With respect specifically to the President, I think the
answer there is--and this may be ``out of the frying pan into
the fire'' kind of answer. The answer there is Article II and
then the 25th Amendment deal with the situation in which the
President is unable to exercise his powers and duties. And I
think it's a reasonable inference, although the Constitution
doesn't come out and say this, that a President who is not
determined to be unable through now what's the 25th Amendment
process for making that determination, there's no process in
Article II itself, the 25th Amendment, added something. A
President who has not been, pursuant to the 25th Amendment,
determined not to be able to exercise the powers and duties of
the President is presumed to have capacity to do that.
I say that not on the basis of any sort of, other than
practice, that's the way it's been for a couple of hundred
years, but I think that is a reasonable inference from the fact
that the Constitution does make a provision about what happens
when the President is unable and the 25th Amendment then
provides a process to determine by which the President is
unable.
Senator Cornyn. Mr. Wold, following up on Professor
Harrison's answer, the 25th Amendment requires actions by the
Vice President and a majority of the cabinet to declare the
President incapacitated, incapable of carrying out his or her
duties, but there doesn't appear to be any accountability or
any remedy when they fail to act as they did in this case. Some
have suggested that there may be potential crimes committed by
members of the cabinet for failing to act, basically suborning
perjury, forging Government documents, impersonating a Federal
officer, making false statements, conspiracy to defraud the
United States, obstruction of justice, wire or mail fraud.
Those are all statutes, criminal statutes that are on the
books.
Do you think there is any application of any of those
criminal statutes to the circumstances of the Biden Presidency
and his incapacity and the failure of those persons, only
persons authorized to question that incapacity under the 25th
Amendment, the failure on their part to act?
Mr. Wold. Senator, there very well could be. I mean,
obviously, that would be a question for a prosecutor to take up
in their discretion.
I will say the 25th Amendment, it's a modern contrivance,
but it still is consistent with American constitutional
tradition, which it assumes that officers of the United States
will act virtuously and morally. And the idea that members of
the cabinet would go to the length of avoiding the Oval Office
so as to abdicate their responsibility to verify the
appropriateness of the President's acuity or the ability to
authenticate actions taken by the President, if that's not a
constitutional scandal, I mean, honestly, I don't know what
would constitute such.
So yes, I mean, I think there could be the potential for
crimes, but moreover, the 25th Amendment can only function in
its procedural mechanisms if people are actually willing to
call a spade a spade.
Senator Schmitt. Senator Britt.
Senator Britt. Thank you, and I really appreciate Senator
Cornyn, Senator Schmitt calling this hearing. This is
incredibly important. I mean, you look at what the
administration did, you look at what the Democratic Party did,
you look at what the legacy media did. It is absolutely
inexcusable. It is not only dangerous, it is disgusting. And
the American people deserve better.
And the fact that we have none of my Democratic colleagues
over here, that this entire dais is empty, that what they
allowed to happen, that they are not interested in correcting
it for the future is absolutely mind-blowing.
And so when we are looking at what Joe Biden did while he
was in office, you have a disastrous withdrawal from
Afghanistan. I mean, leaving equipment, leaving allies,
changing the way the world viewed us. You look at an emboldened
Russia, Iran. You look at what happened, obviously, with China
and those conversations with Joe Biden. You look at millions
flooding across our border. You look at a ton of unaccompanied
children coming across, hundreds of thousands. You look at
hundreds of thousands of Americans dead because of fentanyl
poisoning. You look at record high inflation. Who was in
charge? And the fact that not one Democrat colleague can show
up and try to get answers to that, I hope the American people
see that for exactly what it is.
And so my question to you is, how do we prevent this in the
future?
So we know that the 25th Amendment in the 1960's, we take a
look at that. Section 4 was purposefully vague to allow for
some flexibility. Clearly, it either didn't work, or we have
some people we need to hold accountable for not stepping up.
So I want to know from you all, what do we need to do? Do
you think that there need to be more guardrails when it comes
to Section 4? Do you think that we need some more standards to
evaluate that? And if so, what should those standards be? And
Professor Harrison, I would like to start with you.
Professor Harrison. Senator, this is the question about
further implementation of the Section 4 is one that has not
received a lot of attention because, fortunately, the country
has not needed it very often. I think that this is a situation
in which Congress' power is pretty limited because the
Constitution by design put a somewhat vague but nevertheless
meaningful concept----
Senator Britt. Well, I think it----
Professor Harrison [continuing]. Which is ability on the
part of the President to act----
Senator Britt. Right, and it also means good faith.
Professor Harrison [continuing]. In the hands of political
process. That's the lesson I'll say.
Senator Britt. Yes, and good faith.
Professor Harrison. Yes.
Senator Britt. And I don't think----
Professor Harrison. Yes.
Senator Britt. Obviously, we don't have that here.
Mr. Wold, do you have any opinion on that?
Mr. Wold. Yes, Senator. So you said, should we hold folks
accountable, and should there be some reforms?
Senator Britt. Yes.
Mr. Wold. The answer would be both----
Senator Britt. Right.
Mr. Wold [continuing]. Yes, to--so, you know, your
colleague on the Democrat side who did attend, Senator Welch
said, hey, this is just kind of retrospective. We need to move
on. I would strenuously disagree with that. There's--the only
ability to move forward is if there's an accounting of what was
undertaken under the Biden staff, the Biden personnel, the
bureaucrats, and the cabinet.
And one thing I'll just say is this very issue was debated
by Republicans in 1988 in the Miller Commission Report at the
University of Virginia. Republicans had the--you know, the open
and honest, transparent discussion about the end of the Reagan
Presidency and whether or not there were other guardrails that
needed to be imposed on the 25th Amendment. Some discussions
were about the inclusion of a mental health professional on the
White House medical team, whether the surgeon general should
oversee the inclusion of medical reporting as part of Section
4, Clause 4 of the 25th Amendment.
All I'll say is all of those things have been set aside.
There has been no legitimate discussion in the years since
about how to make the 25th Amendment more robust and how it
could actually operate in the instance that the President
lacked capacity.
Senator Britt. Right, and do we need to more clearly define
what ``unable'' means in the 25th Amendment?
Mr. Wold. Oh, I think most certainly, and I think there
should be--look, you know, the other issue, and a number of
legal academics, you know, former colleagues of Professor
Harrison, have taken this up over the years. I mean, Professor
Calabresi wrote about this 20 years ago, that there needs to be
a more precise definition. And there are lots of issues related
to succession.
Senator Britt. Well, there clearly does because, I mean,
even from all of us from the outside, we are saying there is a
problem. And the fact that we could get no one on the inside to
actually take a look at what they already knew to exist and
then be able to hold them accountable, we have to have other
guardrails moving forward, and that is absolute. So we need to
be talking today about what those guardrails are.
I have a question. I am running out of time. It is two
things. One, senior staff. So I have been a senior staff
member. You take an oath when you get to come and work in this
body. You know, you want to make sure you are doing what is
best for the United States of America, for the State you serve,
all of the things. Is there any way to hold senior staff
accountable for either helping to cover up and/or moving people
to the side? Because it is clear that there are people within
this administration that saw that, and they should be sitting
in front of us today, answering the question of why they turned
their back on America because that is exactly what they did.
And so whether it is secretaries, whether it is people in the
administration, or whether it is senior staff, we deserve some
accountability and we deserve some answers.
And then my last question will be for Mr. Spicer. Legacy
media, how in the world do we hold them accountable? If all of
us on the outside can see it, and we are saying get to the
bottom of this, but yet they refuse, what mechanism should we
put in place to be able to hold them accountable for not
actually following what is clearly in front of them?
Mr. Spicer. Senator, you're asking the right question. When
it comes to accountability, it can't be overstated. When the
Biden White House stripped 440 White House hard passes from
independent journalism--journalists, they were attempting to
control the narrative, to make sure that no one who wanted to
hold them accountable was silenced.
Part of what I think this administration has done so well
is bringing in new voices, people from disparate backgrounds of
all sorts to ask the White House Press Secretary, to ask the
senior staff, and to be able to hold them accountable. Part of
it is allowing other voices in the media. We've seen what the
legacy media did, but that's why I think the growth of
independent media is so healthy for our democracy, and we need
more of it, not less.
Senator Britt. Thank you, and then the senior staff
question, please.
Mr. Wold. Yes, look, Senator, I mean, senior staff from the
first Trump administration were brought in before Committees
and investigated for their participation in drafting the
President's remarks on January 6, for drafting a speech. So if
there was an effort by senior staff, the politburo, as they
seem to like to have called themselves, if they were purposely
distancing cabinet members, evading difficult Q&A with press,
all as an attempt to conceal the President's mental acuity,
yes, they should be held accountable.
Senator Britt. Thank you.
Senator Schmitt. Thank you. Senator Moody.
Senator Moody. Thank you, Senator Cornyn, Senator Schmitt.
I appreciate you holding this important hearing. And certainly,
I appreciated my colleague, Senator Britt's remarks in listing
out so many of the failures of the last administration as they
played out. I think Americans, yes, sat horrified as they
watched these events unfold, but at the core of those failures
were bad policy decisions.
And the truth is, you know, people talk a lot about the end
of the Biden administration and his debate performance, but
those of us that were involved of the repercussion and the
consequences of some really bad, irresponsible, reckless, I
would say dangerous policies, and were involved from day one of
the Biden administration, we started questioning immediately
who was making these decisions because they were so disastrous
for the security of this Nation and the safety of our people.
So I would say from day one of the Presidency through all 4
years, this was a legitimate question. And every single failure
that Senator Britt listed was the consequence of a policy
decision.
When I was the Florida Attorney General, one of the very
first executive actions that came out undid both Republican and
Democrat Presidential precedence of saying, if someone is here
in our country and they are here illegally, and they are
committing serious felonies, we are deporting them. And actual
priorities were that those were the ones they went after first.
And one of the very first actions that came out of that White
House was they abandoned that, that both Democrats and
Republican Presidents had enforced and released to all law
enforcement around the Nation that they were no longer going to
make that a priority.
When sheriffs were calling and pleading with us to take
these people from their jails and not make them release them
back into the communities, we would try and communicate this,
but indeed, they were canceling detainers and releasing these
people into the communities. They were taking people that were
brought here from other countries, brought here only to
prosecute because they were a danger to our Nation and our
people. And instead of deporting them after their prison
sentences, they were pushing them into the United States.
And I don't think it should be lost on anyone that just
yesterday it came out. You know how many the Trump
administration pushed into our interior in the last 4 months?
Zero. And I want you to compare that to a month of the Biden
administration where hundreds of thousands of people barely
vetted, if vetted, were forced into our Nation's interior.
And you have seen these consequences play out. It is not
just rape victims, murder victims, robbery victims. We have
caught people here from foreign nations that are on the
terrorist watchlist that can cause some of our Nation's biggest
tragedies and devastation. That is the undermining of what a
Commander-in-Chief is supposed to do in those policies. We saw
it day one, and that is just one example. And it played out for
4 years.
So I think one of the reasons that you see not one Democrat
in this hearing room right now asking these questions is
because how do you defend the indefensible? What are they going
to say? I mean, there has never been a more reckless, negligent
administration that I can remember in my lifetime. And as
Attorney General, as the wife of a law enforcement officer, as
a Federal prosecutor, as a judge, I sat horrified that that was
the person that was in charge of our safety, our Commander-in-
Chief, in charge of our borders.
And I know, Mr. Wold, you have talked about the danger in
executive actions being pushed out when somebody is not in
charge that understands how it is affecting the safety of this
Nation. I am sure based on your prior experience and some of
the things that you saw being pushed out, I often thought, this
is a radical aide's dream. You have a Commander-in-Chief
probably not able to pay attention, and they are pushing out
policies left and right. Tell me in your experience if you
noticed anything where that could be the case coming out of
that administration.
Mr. Wold. Yes, thank you, Senator. I mean, I think on the
immigration score itself, so many of those sort of special
powers exercised by President Biden on parole, on temporary
protected status, they require the President to do those in his
own name, correct? It's a case-by-case evaluation performed by
the Chief Executive. And so I think in reviewing some of those,
when I was sitting on the sidelines, the question I had was,
well, what does the paper process look like for that? How did
DHS work that up? How did it go through the staff secretary's
office? And what was the President briefed on as far as the
policy considerations tied to some of these decisions to bring
in violent criminals from Haiti or Nicaragua into the interior
of the United States?
Senator Moody. And did it concern you when you learned, and
we are now uncovering, that cabinet officials were kept from
meeting with the President for months at a time?
Mr. Wold. Look, I mean, if you go back through our history,
Senator, so Grover Cleveland, Wilson, FDR, JFK, President
Johnson, President Biden, it's almost a Democrat sport to keep
from the American people the health and acuity of the Chief
Executive. They've been doing this for a long time. But this is
of another level, especially as Mr. Spicer was mentioning, the
complicity of the national media in obscuring this, but also
that cabinet officers would go to the lengths of avoiding
interacting with the Chief Executive because they were fearful
that they would have to speak to his diminished capacity.
Senator Moody. And I am running out of time, and it was of
particular concern that the media seemed to never ask him about
executive actions and policy. Favorite flavor of ice cream,
yes. Why he was pushing dangerous criminals into the interior
of this Nation, no. And that is why I think this hearing was so
very important. What was coming out of this administration was
a radical wish list. And certainly you can see what has
happened to the consequences playing out right now. And now I
think we are all seeing why.
Senator Schmitt. Thank you. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman.
And I am so pleased to join my colleague from Florida in
saying it is time that we have this hearing. All across
Tennessee, I hear from people every single week that say, what
was really going on in the White House, and why would no one
say anything when, with your very own eyes, you could look at
any of the footage and see what was transpiring with President
Biden. And I think the fact that many of his own cabinet
members knew that he was not fit to serve and that there was a
cabal behind the curtain who was making all the decisions, it
is so offensive to the American people.
And it is not something that is a partisan issue. As I
talked with the Democrats, many of them have lost faith in what
they thought was going to be a very moderate Joe Biden
administration. And it turned into be the far-left Bernie
Sanders version of the Democrat Party that was using the
autopen and making decisions and committing our great Nation to
policies that the American people did not support and would
never have supported.
And I fully believe that because of that overreach and that
flippant attitude that much of his staff had toward the
policies of this Nation to people in the administration that
chuckled about tossing gold bars off the Titanic. They knew
they were going down. They knew they were going to be found
out. And they probably knew at some point there would be a
hearing like today and the other side of the dais would be
completely empty because no one can defend what they did.
Mr. Wold, I want to come to you for a moment and talk about
something that was really a disturbing revelation from the
Tapper-Thompson book. And you know, this is part of the thing.
Now we are finding out the media was all a part of the joke.
They were part of the ruse. They were part of the fraud that
was pushed forward. A Biden staffer told the authors that Biden
just had to win, and then he could disappear for 4 years. That
is all they needed to do. And you know, it is, the following
statement was, he would only have to show proof of life every
once in a while.
And as I had a Tennessean say to me when they had actually
downloaded this book and read it, and then they said, you know,
how stupid do they think we are? And the disrespect this
administration showed to the American people. Why is it that
the American people appreciate that President Trump goes out
nearly every day is taking questions and answering questions is
because they have now found out that these staffers were
willing to do undemocratic things, using their term to keep the
President in office, to keep Biden there. They were willing to
do undemocratic things, unlawful things.
So Mr. Wold, let's talk about that behavior and how that
undermines the faith of Tennesseans and all Americans in our
public institutions because they could see what was happening,
but they were being lied to, lied to by people in the White
House who were probably then running in their office and
saying, well, we pulled it off another day.
Mr. Wold. Yes, Senator, I mean, this is a theme you've
talked about for many years, which is the executive branch is
enormous. I mean, there are close to 1,000 employees in the
executive office of the President. There are nearly 4 million
full-time Federal employees throughout the 14 departments that
the President oversees.
Executive power, as accountable to the people of this
country, really manifests in two ways: the power of the
President to remove bureaucrats and to fire them and to affix
his signature to official actions that he undertakes. So when
our--you know, the Washington establishment says something to
the effect of, well, democracy dies in darkness, yes, it does,
when there are staffers, the media, cabinet officials, senior
advisors to the President who all create a covering sort of a
shroud of darkness that obscures who is actually making the
decisions.
And one other thing I'll just say very quickly, a number of
your colleagues on the Democrat side have said, well, there is
an OLC opinion here. We don't need to talk anymore. There is an
OLC opinion. It says you can use the autopen. That opening--the
opening paragraph of that OLC opinion says you can use the
autopen but only when the President directs that you do so
under his decisionmaking power, right? It is very clear again
and again that the President actually has to make the decision.
That cannot be delegated to a staffer or an advisor. And
there's no indication here that anyone other than staff were
making these decisions.
Senator Blackburn. Thank you, Mr. Chairman.
Senator Schmitt. Thank you. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman. Thanks to all the
witnesses for being here.
You know, the visual, sometimes it really is true. A
picture speaks louder than words. It is worth a thousand words.
And here, all you have to do is look over at this side of the
dais to see that the stone wall continues. I mean, from the
party that lied to this Nation for 4 years, let's just take a
look at some of the things that our colleagues said on the
Democrat side when their own Justice Department was concluding
that Joe Biden, who let's not forget, illegally took classified
documents, illegally took classified documents and kept them in
his garage, in his freezer, I mean, Lord knows where. He
certainly didn't know. Their own Justice Department interviewed
the guy and concluded he could not form the requisite mental
state to stand trial. He did not have the mental ability to
stand trial.
[Poster is displayed.]
And what did our Democrat colleagues say? Vice President
Harris says, oh, no, no. The way that the Hur report
characterized the President is so wrong. The President's
demeanor is totally fine. Senator Smith, what the Hur said
about the President not remembering his son's death, so unfair.
Senator Kaine said this is grandstanding. Senator Fetterman
said it is just cheap shots. You had other Senators saying--
Senator Ossoff in February 2024--2024--saying, ``I found the
President to be sharp, focused, impressive, formidable, and
effective.'' In June 2024, Congressman Jeffries insist Biden
was ``incredibly strong, forceful, and decisive.''
Where are they now? They don't want to answer for any of
those quotes now. They lied to us for 4 years, and we know they
lied. They know they lied. It is why they are not here. They
don't want to answer a single question. They can't bear to show
their faces in public. And you know what? It is right that they
can't do that because the bill of goods they sold this country,
they walked this country right into one of the greatest
constitutional crises of our history, of our history. And now
they are afraid to even show up to admit it. These are people
and this is a party that cannot be trusted with power, that
cannot be trusted to tell the truth, the most basic truth.
They all changed their tunes after Joe Biden debated
President Trump, and the whole world could see he couldn't even
form a sentence, that running this guy for President again is a
form of elder abuse. My, how they changed their tunes after
that. Now they can't even show up in public to talk about it.
This is embarrassing. But worse than that, it's dangerous. It
is dangerous for this country.
Mr. Wold, I want to pick on something you just said a
second ago about the OLC and their opinion as to when an
autopen can be used. To be clear about this, autopen means not
signed by the person. Autopen is basically push of a button and
it gets signed. OLC says only when the President specifically
directs it, and it is under his direct authority. Do I
basically have that right?
Mr. Wold. That's correct, Senator.
Senator Hawley. So based on the facts we know, did that
happen in this case with all of the pardons and clemencies and
other giveaways that Joe Biden signed?
Mr. Wold. Assuming that the Biden White House complied with
sort of traditional practice of Presidential administrations
and that there was recordkeeping either from the staff
secretary or others, there should be records to indicate either
through covering memorandum or briefing books where the
President would have signed his signature authorizing this
decision, none of that has come forward. That would be very
easy to dispel some of these concerns.
And I think what we're seeing here is really the autopen is
best understood as a sort of a tool of executive convenience.
Senator Hawley. Hold on a second. I would just want to--you
just said something very important. I want to emphasize that.
So what you are saying is is that there should be--for every
time that Biden authorized the autopen, there should be a
record of that, and he should have had to have registered his
personal consent to using the autopen. Is that basically
correct?
Mr. Wold. I think to put it another way, I would say in the
policy paper flow to the Oval Office, there should be a record
of what documents are presented to the President when and when
he gave his assent to the actions that are listed in those
documents, whether it's a judicial nomination or it's a
statutory----
Senator Hawley. Okay.
Mr. Wold [continuing]. Response to Congress.
Senator Hawley. Well, I think the answer is we need to get
those documents. And I just say to our friends in the media
over here, you guys need to be asking for those documents, and
we need to be asking for them, Mr. Chairman. We need to see
those documents. And the President, the former President now
can certainly choose to release them. I am sure they are part
of his personal papers. Right, Mr. Wold?
Mr. Wold. That's correct. And the first place to start
would be the staff secretary's office under President Biden.
Senator Hawley. So here is the trail. If you want to know,
if you want an answer to the question, did Joe Biden actually
assent to the use of the autopen--and you think of all the
people he pardoned, he granted clemency to, murderers, drug
dealers, child rapists. Let's find out, did he actually
authorize it? There should be a record of it is what we have
learned today. Thank you for that testimony, Mr. Wold. There
should be a record of it.
So this is a binary question. It is not, oh, we don't know.
Gee, it is hard to say. No, actually we can find out. So I,
right now, today, I call on President Biden, former President
Biden and his staff, release the documents. You have them, you
know you have them, release them. If what you did is legal and
if you are really not embarrassed about it and you think it was
totally constitutional, release the paper flow. Show us the
documents where the President authorized the use of the pen for
every single pardon and clemency and stay application. Let's
see it. Let's see all of it.
And if you won't do it, we should subpoena those documents,
and we should find out the truth of who was really running the
White House because I think we can see it was not Joe Biden.
Thank you all for being here today. Mr. Wold, thanks for
your testimony.
Senator Schmitt. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Gentlemen, I want to try to separate policy and politics
for a second. I know it is hard to do around this place, but I
thought Senator Cornyn made a very good point in his opening
remarks. I think Senator Smith made the same point that the
policy here is very important. And I want to ask you your
opinion on the policy. Professor, tell me briefly, I know you
came to talk about autopens, but tell me briefly about the 25th
Amendment.
Professor Harrison. Senator, the 25th Amendment provides
the process by which to implement a principle that's in the
original constitution, which is when the President is unable to
exercise power at the powers and duties of the Presidency,
somebody else exercises them starting with the Vice President.
And the 25th Amendment sets up a process by which if there's a
question whether the President is able to do that, the Vice
President and the heads of the executive departments can
temporarily basically put the Vice President in as acting
President, and then Congress ultimately decides the question.
Senator Kennedy. Well, the standard--is it not, Professor,
the standard is disability of the President. Is that correct?
Professor Harrison. Unable to exercise the powers and
duties.
Senator Kennedy. Okay.
Professor Harrison. Yes.
Senator Kennedy. Here is what I would like your opinion on
and the opinion of these two gentlemen here. You have all been
staffers. You have worked in government. You have had a boss.
In Mr. Spicer's case, his boss was the President of the United
States. Let's suppose the President--using your experience as a
staffer. You were working for the President, any President,
hypothetically, a President. And let's suppose the President
started talking like he was from outer space. Let's suppose the
President became fatigued very easily. He couldn't finish a
sentence without taking a nap. Let's suppose the President, I
mean, if he was just physically in bad shape, mentally and
physically. Mentally, he may or may not have--you are not a
doctor--neurodegenerative disease, but physically, you can
see--you could bake a Thanksgiving turkey in the time it takes
him to walk across the stage.
What is as a member of his staff, what do you think is your
moral obligation to say, wait a minute, the President can't do
the job anymore? I know you are loyal folks. You believe in
your President, this President, whichever President, I am
speaking hypothetically. You are loyal, you want to be a good
staffer, but you also have a moral obligation. How do you reach
that decision, Professor? And I will go to each of you.
Professor Harrison. Senator, I think the first thing you
would have to do in a situation like that is exercise your own
judgment. Is this--how serious is this problem? Because
everybody has moments when they lose focus. It happens. But if
somebody thinks this is a really serious problem, I think the
first thing to do is the most difficult, which is to say to the
President--because the 25th Amendment also provides that the
President can say, I am unable to exercise the powers and
duties of my office.
Senator Kennedy. And suppose the President says----
Professor Harrison. That would be extremely difficult, but
I think it should be done.
Senator Kennedy [continuing]. Look, trust me, I can. And it
is clear to you that he has neurodegenerative disease and he
can't. What do you do? Do you have a moral obligation as a
staff member to go to the American people and say, we have got
a problem here, it may cost me my career?
Professor Harrison. Senator, I think at that point, you
have an obligation to talk to the Vice President who is in
charge of the Section 4 process under the 25th Amendment.
Senator Kennedy. What about you, Mr. Wold? You have a moral
obligation. I understand you want it to go away, you want to
work it out within, but you can't. When does a staffer have a
moral obligation to stand up and say he can't be President
anymore, or she can't be?
Mr. Wold. Well, Senator, the 25th Amendment only works if
individual staffers or officers of the United States exercise
that kind of moral judgment so----
Senator Kennedy. That is what I am asking you.
Mr. Wold. Yes, so, I mean, I think always, as the professor
said, and the Presidency is an enormous burden, so it would be
not one instance, it would have to be several instances of a
failure to exercise judgment.
Senator Kennedy. How do you make that decision? You are the
staffer, I get it.
Mr. Wold. Yes, well, I think it begins with prayer, of
course, but after that, I think it's conversation with other
staffers. And if you're unable to confront the President or to
raise the issue with the Vice President, you should resign.
Senator Kennedy. What about you, Mr. Spicer? Do you stand
up and do it and tell the truth and run, or do you have a
greater obligation to your boss?
Mr. Spicer. Well, luckily, I didn't have that problem. But
I would say that you have a moral obligation as an American, as
a citizen, as a human being. If the leader of the free world
cannot conduct themselves to make the decisions that are
critical to this country and to the world, you absolutely have
a moral obligation to follow the chain of command. And if they
don't act, then you must.
Senator Kennedy. Do either of you gentlemen disagree with
that? Professor?
Professor Harrison. Senator, I think acting means talking
to the people who have the responsibility or are in a position
under the Constitution to do something with the situation.
Senator Kennedy. You don't agree with Mr. Spicer?
Professor Harrison. I'm not--Senator, I'm not sure exactly
what he has in mind, other than talking about the--talking to
the people who can make the decision.
Senator Kennedy. Well, I am just trying to ask, you have
all been staffers. Suppose you go to everybody you are supposed
to go to, and they all say, my advice to you is to shut up. Do
you have a moral obligation as a staffer to say, look, this
person can't be President of the United States. It isn't
policy. He physically can't do it.
Mr. Spicer. Senator Kennedy, I'll--it's not a question of
whether a staffer has that obligation. It's whether you, as an
American, have that obligation. And I think each and every one
of us does.
Senator Kennedy. Yes, but you can see it. An American
can't. Professor, what do you think?
Professor Harrison. Senator, I think there are situations
under which someone in that position should speak publicly, but
I also think that the views of a single individual who is not
the person who is constitutionally responsible for taking
measures should be considered by the public as just the views
of a certain--of a--of one individual who has some information
about the subject.
Senator Kennedy. Thank you, Mr. Chairman.
Senator Schmitt. Thank you. Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman.
Gentlemen, thank you for being here. Actually, the fact
that this is in the past kind of reminds me of that scene in
Lion King where Rafiki the mandrill hits Simba on the head and
said, doesn't matter, it is in the past. You know, I could see
where my Democrat colleagues would like to use that argument,
but it mattered.
And, you know, for me, I met President Biden as Vice
President Biden when I was sworn in. He literally swore me in
in 2015. And I have had several interactions with him over the
years. There is no question that there was a significant
degradation in his cognitive abilities. Probably the last time
I spent much time with him was at a NATO summit.
And I do think there are a lot of legitimate questions to
be asked about, know, who may have been tending the store, and
I believe we should get to the bottom of it, but I want to look
to the future. And back when this discussion was going on, I
was suggesting--we know what the 25th Amendment does.
Professor, I am kind of curious about why--and with due respect
to my colleague from Louisiana, this is a hell of a burden to
place on a staff. You know, Mr. Spicer, you have been in the
White House. Can you imagine how heavy that would be and how
unlikely it would be for you to be successful as an individual
staff member?
But Professor Harrison, I am thinking more along the lines
of what you see in boardrooms all the time about annual
evaluations of the CEO or board members. What about the concept
of something short of triggering the 25th Amendment where the
cabinet members, hand-selected members of the President,
confirmed by the Senate, maybe on an annual basis, have to have
an attestation, that based on their work with the President of
the United States, that he is mentally capable, fit, the same
way that we have boards make those decisions about board
directors and CEOs?
What would be wrong with some sort of a report or
attestation to Congress from the cabinet members saying this
man or woman is good to go, and it would be, you know, perjury
to Congress if they ended up covering up and history proved
that? What is wrong with something like that as we are looking
forward?
Professor Harrison. Senator, I would be--and maybe I am
sort of being unduly protective of the independence of the
other two branches, but I----
Senator Tillis. Well, that is sort of why I want to leave
it in the--that is why I want to--all I want is the cabinet to
truthfully attest to the fact that their boss is of sound mind
and body, and unless they lie, it is not an issue.
Professor Harrison. Senator, I----
Senator Tillis. It is an Article II responsibility to
report to Congress like so many other things. What is wrong
with that?
Professor Harrison. I think it would be a very good idea
for the President to create a process like that. My concern is
the thought of Congress making such a process mandatory,
especially in light----
Senator Tillis. Well, I am trying to figure out the
consequence because, arguably--I find it hard to believe that
there were members of the cabinet that didn't go, you know
what, we love this guy, he appointed us to this position, but
he is missing a step. And they are refusing to--this is not
about any one person. This is about 340 million people in this
country. No one of us should think that we should somehow be
given a break if we are missing a step. So all I am saying is
you got to report honestly to Congress that the President of
the United States, in your opinion, is absolutely demonstrated
sound mind and body. It is like no other testimony. It would be
no different than us having them before the Committee and say,
is the boss okay? And if they lied, they would be perjuring
themselves. So what is the difference between that and some
sort of a pro forma report that I would be willing to subject
the current President to, and then we would have it for all the
future Presidents? What would be wrong with that?
Professor Harrison. Senator, again, I think the problem
there is the Constitution has created a process for that, and
that's the 25th Amendment. And that suggests that Congress
can't create another process.
Now, I do think that the point you're making today is part
of the political process that might lead Presidents to create a
system like that on their own, which might enhance the people's
confidence that they're okay.
Senator Tillis. I am about to run out of time.
Mr. Spicer, what do you think?
Mr. Spicer. Senator, the President normally goes under a
routine physical every year. In the case of President Biden, it
was Dr. O'Connor who affirmatively stated his fitness for
office. The doctor is probably the most competent person to
attest to the President's fitness for office. The doctor should
be held accountable for stating in the affirmative that
President Biden was fit for office.
Senator Tillis. Thank you. Thank you, Mr. Chair.
Senator Schmitt. Thank you. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
The Biden administration may go down in history as the most
brazen constitutional fraud in American history, a Potemkin
Presidency fronted by a failing puppet with staffers behind the
scenes pulling the strings.
This is not political hyperbole. The American people saw it
with their own eyes during the June 2024 debate. Numerous times
Biden stood frozen behind the podium, mouth agape, eyes frozen
and unblinking. When he did speak, his words were confused and
disjointed. I said that night, this is the most consequential
Presidential debate in history because it will result in one of
the two candidates being removed from the ballot. That was
exactly right.
And following that debate, the Democrats recognized the
collapse. They pulled out their knives and took out President
Biden like Caesar on the Ides of March. For all of their
strutting about, protesting that they support democracy, not a
one of them gave a damn about democracy when they pulled Biden
off the ballot and dropped Kamala Harris in without a single
Democrat primary voter voting for him. And you know what? Not a
single Democrat is here today because not a single one of them
gives a damn about the fact that they lied to the American
people for 4 years.
They knew. Every one of them knew that Joe Biden was
mentally not competent to do the job. The White House press
secretary, she knew when she stood in front of the American
people and lied over and over and over again. And they are not
here because they can't defend themselves.
It wasn't a surprise. For 4 years, the White House hid
President Biden from Republican Senators, would not let him
meet with us. He served 4 years in this body. We all know him.
And they deliberately lied. And by the way, Jake Tapper had a
bombshell book exposing the incredible scandal that Biden's
mental decline was covered up by Jake Tapper. There is a
Yiddish word, chutzpah. And that truly is chutzpah. How dare we
lie and cover up what we all knew?
Now, I have been asked literally a thousand times by
Texans, who was running the country? And I am going to give you
the most terrifying answer. I don't know. I genuinely don't
know. And not a single Democrat here cares.
The most telling proof of Biden's decline came with the
signature of the President, the symbol of executive authority
that was outsourced to a machine.
Mr. Wold, you are a lawyer who served in the White House
Counsel's Office. You understand the gravity of Presidential
action. Does the President's signature carry legal and
constitutional weight under Article II?
Mr. Wold. Yes.
Senator Cruz. Is the act of signing an Executive Order or
signing a law or granting a pardon a delegable duty of the
President?
Mr. Wold. So in that opinion in 2005 from OLC, they said
essentially that an autopen could be used by a subordinate, but
the President's determination as to sign the document can never
be delegated.
Senator Cruz. Can that authority be transferred to a
staffer or machine without the President's explicit
authorization?
Mr. Wold. Never.
Senator Cruz. And if you look at the statistics, the
statistics are stunning. In 2021, President Biden issued 78
Executive Orders. None were signed with an autopen. That first
year of the Presidency, Biden, I suppose, was relatively lucid,
and 78 Executive Orders he signed by hand. The second year,
however, we see the autopen emerge. The first autopen Executive
Order was issued on July 15, 2022. After that day, 100 percent
of the Executive Orders issued in 2022 were signed by an
autopen. In 2023, Biden issued 24 Executive Orders; 16 were
autopenned. In 2024, Biden issued 19; 14 were autopenned. In
2025, Biden issued 14 Executive Orders. Every single one was
autopenned.
Mr. Wold, let me ask you as a legal matter, if there is a
law that has passed both houses of Congress and it goes to the
White House and a staffer autopens signing that law without the
President's authorization, is that law legally passed and
signed into law?
Mr. Wold. No.
Senator Cruz. If an Executive Order is issued and a staffer
autopens it without the President's authorization, is that
Executive Order legally binding?
Mr. Wold. No.
Senator Cruz. And if a pardon is issued from the President
of the United States and a staffer autopens it without the
President's authorization, is that pardon legally binding?
Mr. Wold. No.
Senator Cruz. Under the Biden White House, the ceremonial
song ``Hail to the Chief'' was effectively replaced with ``Hail
to the Pen,'' and it was an outright assault on democracy. And
every reporter covering this ought to ask, why doesn't a
Democrat care?
We heard about the moral responsibilities of a staffer. How
about an elected Senator who knows damn well that if we get
into a war and Iran is preparing to fire a nuclear weapon at
the United States, that the Commander-in-Chief is busy playing
with his jello and is not competent to defend ourselves. And
every member of the cabinet, the chief of staff, the press
secretary, and the Members of Congress who lied about this on a
daily basis with the press's complicity, they are all
responsible for subverting democracy.
Senator Schmitt. Senator Cornyn.
Senator Cornyn. Professor Harrison, we have talked about
the mechanics of the 25th Amendment whereby an incapacitated
President would be removed. But it strikes me that, ultimately,
it happened, albeit not before the end of President Biden's
full term. What we saw happen after the disastrous debate in
the summer of 2024 is basically an exercise of the powers of
the 25th Amendment by the political elites and the Democratic
Party to get President Biden not to run again and to substitute
Kamala Harris for him as the Democratic nominee for President.
So, Mr. Spicer, maybe the mechanics were a little bit
different. Maybe the timing was not the same, but doesn't that
demonstrate the capacity of the leadership of the Democratic
Party, of the Biden family, of the senior staff in the
President's administration to be able to convince the President
that he no longer was capable of serving and needed to step
down?
Mr. Spicer. Senator, the left and their friends in the
media like to throw around terms like threats to democracy,
constitutional crisis. And if we don't have confidence in the
leader of the free world making decisions, that truly is the
definition of a constitutional crisis and a threat to
democracy. So for all these folks to stand up here and use
those phrases over and over again and then not have the desire
to show up, to understand what's happening, to stand up at the
time, as we discussed earlier, whether it was a staffer or a
cabinet member, to literally avoid going to the Oval Office
and, in the case of the media, to avoid the questions that were
so clearly obvious to the rest of America, shows that they were
more concerned with power and preserving that power and an
agenda than they were at really caring about the Constitution
and democracy.
Senator Cornyn. I agree that that is the clear conclusion.
And obviously, they decided to do it only at such a time as
that ability to wield power was coming to an end. If in fact,
President Biden had remained the nominee of the Democratic
Party and then ran against and lost to President Trump, these
folks would be out of luck and out of power, so they decided to
act under that circumstance.
Mr. Spicer. Senator, you look at a lot of these decisions,
and it was pretty clear that there was a handful of folks at
the top of the Biden administration and Biden White House that
had been around him for decades where all of that information
funneled. So I mentioned before, there are approximately 20, 25
senior White House staffers that have the rank of assistant to
the President. Those are the highest White House staffers. I
would bet that only a handful of them ever interacted with
President Biden on a daily basis. The rest of them had their
communications funneled through other people.
If the press secretary, the communications director, whose
job it is to speak on behalf of the principal in lieu of them
being able to talk or communicate don't have access to those
individuals at the senior most level, then what good are they?
And I would argue that while many times we heard people in
the press and on the left accused the Trump White House of
``lying,'' for them to go out there and talk about the
President's stance on issues, what President Biden thought or
didn't think on a personnel issue or policy issue, when in fact
they had never spoken to him, is in fact the epitome of lying.
Senator Cornyn. One of the most consequential actions or
inactions of the Biden Presidency during 4 years was his
failures to secure our southern border and to deal with the
illegal immigration. I have in my hand examples of the Biden
immigration proclamations and Executive Orders, and there are a
lot of them, as you know. They also include things like
granting temporary protected status to large populations of
immigrants, particularly from countries in Central America,
rescinding Trump administration policies when it came to
enforcing our laws at the border, granting parole, which is
essentially a permission slip to enter the country in a way
that would otherwise be illegal.
And Mr. Chairman, I would ask unanimous consent that this
document be made part of the record as an example of the sort
of consequential border security and immigration-related
measures that President Biden purported to sign.
Senator Schmitt. Without objection.
[The information appears as a submission for the record.]
Senator Cornyn. Mr. Wold, I do want to followup on a couple
of things with you and Mr. Harrison and also Mr. Spicer. Under
the Presidential Powers Act, we could have a special access
request, correct, to the archivist to find out what assent was
actually given by Joe Biden on the autopen. Is that your
understanding?
Mr. Wold. If they kept records, yes.
Senator Cornyn. Right. Right. Well, I think that will be
something we will be pursuing.
Professor Harrison, I wanted to ask you, you know, sort of
on the Article I branch's role--and I think I understand your
concern when you say the President could do something, you are
dealing with sort of a separation-of-powers issue is sort of
what I am reading into that. So the Article I branch can
impeach for high crimes and misdemeanors should the
Constitution be amended, in your view, to deal with this
incapacitation. So impeachment would be a vehicle beyond just
the 25th Amendment, but impeachment would be a vehicle to deal
with these issues.
Professor Harrison. Senator, there is a longstanding
question about whether impeachment is appropriate for
inability. There has been questions right at the beginning of
the republic about a couple of judges who were in very poor
shape, not that they would committed crimes, they were
impeached and removed, and there were doubts as to whether
impeachment was appropriate for that because there was
problem--their problem was age and inability.
So you're absolutely right that there is a doubt right now
whether the impeachment process--and it goes back a long, long
way--whether the impeachment process is a way of doing--dealing
with inability as opposed to misconduct. It's clearly primarily
directed at misconduct, and I think that if Members of Congress
are thinking about an additional constitutional amendment, and
maybe they should be, they should think both about adapting the
impeachment process to inability, which, as I say, right now
it's not clear it's properly used in those situations, or
creating yet some other political process to deal with
Presidential inability if lawmakers think that the political
process that is in Sections 3 and 4 of the 25th Amendment is
inadequate.
The last thing I'll say, just as a policy matter--and this
is not speaking on the legal question--I do think it's
important that any decision about Presidential inability remain
something that's decided by politically accountable people,
that it's treated as a political decision. It can't just be a
technocratic decision.
Senator Schmitt. Mr. Spicer, you have criticized the
corporate media and legacy media folks for sort of lying down
here or being complicit because of their, whether it is Trump
derangement syndrome or whatever the reason was. Who
specifically do you think gets a gold star for lying most
profusely and just sort of continuing to cover this up over the
years?
Mr. Spicer. Sir, that would be like a photo finish. There
would be a lot that would be probably right there at first
place. They're all culpable. I mean, I read some of the
headlines to the Committee earlier, The Washington Post, CNN,
NBC, without evidence, to use their phrase, went after
President Trump's physical and mental acuity and yet failed to
ask similar questions of the White House press office publicly.
They failed to cover the stories. I don't think that there's a
winner. I think they're all losers.
Senator Schmitt. Thank you. And then we will sort of wrap
up here with Professor Harrison and Mr. Wold. So moving
forward, we mentioned maybe possibly amending the Constitution
or further exploring whether incapacitation is an impeachable--
you know, if impeachment is a remedy. What other, in your
experience, what other things moving forward could be done to
make sure that this scenario that we saw play out over the last
4 years never happens again?
Professor Harrison. Senator, I think the most important
thing that can be done is something you're doing right now,
which is draw public attention to this problem, and so give
Presidents an incentive to take steps that will reassure the
people that they are sound and able to perform their functions.
Senator Cornyn. Mr. Wold?
Mr. Wold. I would agree with the professor and just add
that there should be some accountability for the staffers and
the officers of the United States who acted to conceal and to
cover up the President's incapacity from the American people.
One other issue that is tied up in sort of this bundle of
incapacity, impeachment is also succession. And that's
something so many have written about extensively over the
years. We are very blessed that we have never had a double
vacancy with the President and the Vice President, either
because of terror attack or misconduct. That's something that
legal scholars have said for many decades that Congress really
has to work on that. And I would add, yes, in fact, that's
something you all should take up with some seriousness.
Professor Harrison. May I say spontaneously, yes, please.
Senator Schmitt. Okay. Well, I want to thank the witnesses
for your testimony here today. Written questions for them may
be submitted for the record until June 26 at 5 p.m.
And with that, this hearing is adjourned. Thank you.
[Whereupon, at 12:24 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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A P P E N D I X
The following submissions are available at:
https://www.govinfo.gov/content/pkg/CHRG-119shrg61845/pdf/CHRG-119shrg
61845-add1.pdf
Submitted by Senator Cornyn:
Examples of Biden Immigration Proclamations and Executive Orders. 2
Submitted by Senator Hawley:
Denying the Decline, Biden Declining, Democrats in Denial........ 13
Submitted by Senator Schmitt:
United States Presidents, chart.................................. 14
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