On July 26, 2024, someone in the Biden administration signed Joe Biden’s name to an order titled “Presidential Determination on Refugee Admissions,” permitting all (largely unvetted) Lebanese refugees to remain in the United States. The order was “signed” one month after Joe Biden appeared on stage for the now-infamous debate with Donald Trump - when most of the country finally admitted that the President was cognitively impaired.
On September 29, 2023, someone in the Biden administration signed Joe Biden’s name to a Presidential Determination allowing between 30,000 and 45,000 migrants from the Near East and South Asia - Afghanistan, Iran, Iraq, Syria, Lebanon, and others - to enter the United States. That order ultimately allowed 14,708 (unvetted) Afghans to come into the country. The order was signed just one month before Special Counsel Robert Hur interviewed Joe Biden and concluded that the President was, in effect, incapable of standing trial - describing him as an “elderly man with a poor memory.” The now-public audio recordings of that interview – recordings which should have been released immediately - confirm Hur’s assessment
So: Were any of these orders actually valid? Did Joe Biden even issue these orders?
Who was actually running America in the waning years of the Biden administration?
At this point, it appears virtually certain that Joe Biden lacked the mental capacity in 2023 and 2024 to meaningfully understand many of his orders. And it’s not just Republicans saying so. Drawing on more than 200 interviews with people inside and outside the administration, CNN reporter Jake Tapper has reported that a small cadre of advisors, referred to internally as “the politburo,” were effectively running the White House during this period. Further, both Tapper’s reporting and a Congressional report agree that Biden was in effect sheltered away. This strongly suggests that decisions relating to immigration and national security during that time may have been made by people other than the duly elected President. And for that, criminal sanctions are appropriate.
The above two immigration orders are, of course, only examples - examples that come to mind in light of the recent spate of terror attacks over the past two weeks. But the number and scope of presidential directives issued during those years extend far beyond immigration policy.
While the shadow presidency has faded a bit from public dialogue, last week, the issue briefly resurfaced in the headlines when reports indicated that the Department of Justice had decided to close its criminal investigation into the matter. Those reports were quickly corrected however, and it was later announced that the investigation is, in fact, continuing. What caused the confusion remains unclear. For now however, it appears that criminal charges remain possible.
The 2025 Congressional investigation into this affair concluded last October with a report describing the events as one of the “biggest political scandals in U.S. history.” While the report and accompanying deposition transcripts are long and often tedious, they do clearly back up the claim – this is not hyperbole. Although the full picture has yet to emerge, what is already clear is that - even when judged against the long history of presidential controversies - this episode is simply remarkable.
“But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity and under such plausible appearances, that the public opinion is left in suspense about the real author.”
Federalist 70 (Hamilton)(rejecting a committee as head of executive branch)
Current Status of Investigations
The 2025 Congressional investigation led to fourteen depositions of Joe Biden’s inner circle at the White House. The Committee’s final report concludes in broad terms that the President experienced significant cognitive and physical decline and that his staff worked to conceal it. The report also found that staff members regularly used the autopen to sign presidential orders without adhering to the proper policies and procedures governing such delegated authority. In some cases it appears clear the President may not have even been aware of the orders being issued in his name.
The Committee also referred the matter to the Department of Justice for a wider investigation into the situation, including into the White House doctor Robert O’Connor, and two Biden aides: Annie Tomasini and Anthony Bernal, who refused to testify relying instead on their 5th Amendment right to remain silent in the face of criminal exposure.
Last week’s report that they the D.O.J. was closing the criminal investigation, may signal that the Justice Department is having problems making a criminal case. If criminal charges can be brought, they obviously should be. The leverage of possible jail time is likely the best way to get to the full truth here. But the burden of proof in a criminal case, combined with the current political climate in the judiciary, and the likely venue in the District of Colombia, could make bringing a criminal case difficult at this point.
We have recently seen the impact that anti-Trump (pro-Democrat) sentiment can have on potential prosecutions. Consider the cases involving James Comey, Letitia James, and the six Democrat senators implicated in the alleged treason matter. Whether those cases were ultimately winnable is beside the point. In earlier eras, cases like these would likely have been considered at least “indictable.” Today, that appears far less certain. And that may be what the Department of Justice is struggling with.
In any event, regardless of whether criminal charges can ultimately be brought, the Trump administration should consider an alternative route to push this case along: civil litigation.
Civil Litigation
While it may not lead to immediate arrests, civil litigation could still produce meaningful results. At a minimum, it would likely generate additional evidence, which could increase the chances of future criminal charges, including electronic discovery - emails, texts, phone records, etc. The bottom line is that the country needs some form of judicial determination about what actually occurred here.Without such a determination, those who effectively acted as president may escape accountability under the cover of partisan politics, while the effects of their policies remain in place.
Any improperly issued orders, should be reversed, both for symbolic reasons and for practical ones. Some of those actions may still be conferring benefits or producing ongoing consequences that continue to harm the country. The liberal excesses of the Biden years, it now appears, may have been administered by this unelected and unaccountable politburo, driving policies such as open borders, trans-rights initiatives, and DEI extremism. This is a point President Trump has made repeatedly when asked about some of the more perplexing Biden Administration policies:
The Inflation Reduction Act was another Biden scam. And when I say Biden, it’s not Biden. It was the lunatics that work around the - you know, in the Oval Office, around the beautiful Resolute desk. (Donald Trump, June 30, 2025)
From a civil litigation standpoint, there is no shortage of potential orders to examine - financial directives, immigration policies, pardons, and other actions issued during the relevant period. Administration lawyers need to identify the cases with the strongest chance of success, select the most suitable targets and jurisdictions, and then attempt to prove that the President did not actually issue the order. This is no small task. But in a civil proceeding, the burden of proof is not beyond a reasonable doubt - and the government would not need to secure an indictment from a potentially hostile grand jury in order to proceed.
There will, of course, be significant roadblocks, largely because the situation is so unusual. Additionally, a legal concept called the “presumption of regularity” will effectively place the burden on the Trump administration to prove the Biden orders were not authorized by President Biden. But this hurdle is hardly insurmountable. The Congressional depositions should help here, as they show clearly that there was in fact no regularity regarding Presidential orders - no established procedures that were followed relating to obtaining or documenting Joe Biden’s authorization. Indeed, in multiple cases the deponents could not even identify who physically used the autopen - and there was no log to reference.
In a typical situation, an inquiry of this nature might just focus on whether Joe Biden was mentally incapacitated. But when the President of the United States is involved, the Constitution assigns that determination exclusively to the political process under the Twenty-Fifth Amendment. Courts cannot make that finding. The administration would therefore need to prove something different: that the orders were not issued by the President at all - that someone else acted without presidential authorization, regardless of the President’s mental condition.
Biden’s incompetence therefore is only really relevant to demonstrate how and why others may have taken the reigns. And whether it was an autopen, that affixed the name “Joseph Biden” to the paper is likewise only tangentially relevant to demonstrate that the President was likely not present when the document was signed. The real question is whether the order was authorized by the President.
Proving that point in even one case could have far-reaching consequences. If an order is invalid for one person, it would likely be invalid for all others similarly situated. The good news is that the American civil court system has extensive experience correcting widespread errors and fraud. Addressing such systemic problems can be slow and burdensome, but it is far from unprecedented. And the process can be very effective in discovering new evidence.
Pardons
The issue that has drawn the most attention in this controversy is the pardons. Negating presidential pardons would certainly present a novel legal situation, but reincarcerating improperly released prisoners is not. Early releases caused by administrative errors are remarkably common, and the law is clear that prisoners may be taken back into custody when such errors occur. There are even cases where large numbers of mistaken releases were later corrected en masse. So how might something like this be addressed if the underlying pardon itself is in doubt?
“And so the pardons, for example, he pardoned categories of violent criminals and turned them loose on the streets, and he didn’t even know who. He didn’t even know what the categories were, apparently, much less the individual people, that he pardoned.”
Mike Johnson, Speaker of the House
Going back to the original sentencing judge and seeking an arrest warrant to return the prisoner to custody appears to be the most prudent course. It would likely be in that context that the question of who actually authorized and signed the pardon could be litigated. The Department of Justice may have a strategic advantage here, because it can decide which pardon to challenge, taking into account both the particular prisoner involved and the sentencing judge who would hear the matter.
Exactly how the proceedings would unfold from there is uncertain, but hearings would likely be scheduled and additional testimony from the individuals involved could follow. Importantly, the burden of proof would not be beyond a reasonable doubt. This would not be a criminal prosecution; rather, it would be a civil proceeding focused on determining who issued the order and who actually signed the relevant document.
Of particular importance here could be the deposition testimony of Jill Biden’s Chief of Staff Anthony Bernal, which is highly favorable to the Trump administration’s position. When asked under oath whether any pardons were issued without President Biden’s authorization, Bernal invoked his Fifth Amendment right against self-incrimination.
In a civil proceeding, such as the one contemplated here, invoking the Fifth Amendment can permit an “adverse inference.” In other words, the court may presume that the answer would have been unfavorable to the witness. Applied here, that inference could support the conclusion that someone other than the President authorized or signed the pardons. That would be a significant step toward resolving the question of their validity.
Financial Directives
Money transferred pursuant to an improper order could also be addressed through civil litigation. In the three months between Donald Trump’s victory in the 2024 election and his inauguration, the Biden administration reportedly distributed roughly $100 billion in grants, largely directed toward climate change initiatives, but also toward student loan relief and foreign aid.
Most of these expenditures appear to have been authorized under existing statutes, so likely did not need Presidential authorization. But not necessarily all of them fall into that category. The spending must be carefully parsed.
The central question remains simple: who approved the actions? Any measure taken during this period that required presidential authorization or signature should be closely scrutinized. Where the President’s actual approval is uncertain - or cannot be verified - the matter could provide the basis for civil litigation.
Recouping funds is, after all, the central function of America’s civil court system. Courts routinely order the return of money through restitution, or “clawback” orders. Bankruptcy law provides many examples, where even innocent recipients must return funds that were improperly distributed because of someone else’s wrongdoing. These cases can lead to difficult outcomes - people who relied on the money for legitimate purposes may nonetheless be required to give it back. The Bernie Madoff cases produced many such situations.
Beyond the last-minute grants, numerous financial orders conveying federal funds were issued throughout 2023 and 2024 - the years the President appeared clearly compromised. The Trump administration should review all such directives to determine whether they were actually ordered by the President.
Bringing these financial issues before a court may not be especially difficult procedurally. If the government attempts to adjust accounts internally or sends demand letters seeking repayment, the recipients will likely challenge those actions. Such disputes would almost certainly end up in federal court, providing a forum capable of addressing the question of authorization - and, once again, an opportunity to uncover (under oath) more evidence about what actually occurred.
Immigration and the Border
But the most interesting possibility involves some of the immigration directives that were ostensibly signed by President Biden. With the current threat environment at home, heightened by war overseas, there is renewed urgency in identifying and removing potential security risks.
While these may be the most complicated orders to challenge, they could also prove the most consequential. Consider where we are. President Joe Biden’s 2024 and 2025 Refugee designations increased the number of refugees admitted to roughly ten times the level set during Donald Trump’sadministration, and those directives also removed President Trump’s ban on Somali refugees. Yet it is possible that someone other than the President was responsible for issuing them. Those refugees are still here. Could civil litigation over the validity of those orders provide a way to determine the legal status of these refugees en masse? It is at least worth examining.
“They had radical left lunatics working there, and they took over that office. They didn’t want Biden, and then after a little while, they realized, he’s incompetent. This is really a good thing. And they ran that thing. Look, Biden was never for open borders. Biden was never for transgender, for everybody. He was never for men playing in women’s sports. He was never for that.”
President Donald Trump
It is true that many of the Biden administration’s immigration policies have since been modified or replaced by directives issued by the Trump administration. Nonetheless, many migrants entered the country pursuant to what appeared at the time to be valid presidential orders. If some of those directives were not valid at all however, the question becomes unavoidable: what is the legal status of those individuals now?
Challenging any suspect immigration orders could prove uniquely complex, however, because immigration courts - somewhat counterintuitively - are part of the executive branch. As a result, immigration judges likely lack the authority to effectively void what appears, on its face, to be a presidential order.
A ruling of this nature would likely have to come from the regular U.S. federal courts – and perhaps ultimately from the U.S. Supreme Court. Several procedural mechanisms could be used to bring such a case, but the most likely vehicle would be the Declaratory Judgment Act, which, in very general terms, allows a federal court to resolve a legal controversy by declaring the rights and obligations of the parties involved.
Once before the court, hearings and evidentiary proceedings would almost certainly follow, providing another opportunity to develop additional facts. If a court ultimately determines that one or more of the Biden administration’s border orders was invalid, that ruling could significantly simplify - or expedite - immigration proceedings for large groups of affected individuals. Complicated yes. But perhaps worth the effort.
“The circumstances which may have led to any national miscarriage of misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impractical to pronounce to whose account the evil which may have been incurred is truly chargeable.”
Federalist 70 (Hamilton)(rejecting a committee as head of executive branch)
A recent report in the New York Times indicates that some advisors warned senior officials in the Biden White House (i.e. “the politburo”) that the administration’s open border policies could lead to disaster. According to the report, senior advisers refused to change course because they were concerned about alienating Hispanic voters ahead of the 2024 election. If true, that is abominable - particularly when combined with deposition testimony from one of those top advisors, Mike Donilon, who acknowledged that he stood to earn $8 million if Joe Biden was re-elected.
Given these circumstances, it is important to determine - through whatever legal means are available - whether any migrants entered the country pursuant to a presidential order that was not actually issued by the President, but instead issued by others acting on political, ideological, or personal motivations.
Don’t Stop
None of these paths are simple, and much of this territory is uncharted. The procedural protections afforded to criminal defendants - including the extremely high burden of proof - may ultimately make a criminal prosecution unwinnable at this point. Last week’s brief halt and restart of the Justice Department’s investigation may already reflect that reality. Still, the country should not simply let the matter drop. Civil litigation may not provide the most satisfying outcome, but it is far better than doing nothing.
First, in some instances it could correct improper actions - recovering money and changing the legal status of individuals who may have been designated improperly, whether migrants or pardon recipients. In short, it may offer a mechanism to restore lawful outcomes where they may have been distorted.
Second, civil proceedings would place more facts on the public record. Additional depositions could clarify how decisions were made and who was responsible - including, potentially, testimony from figures such as Jill Biden, Hunter Biden, or even the former president himself, for whatever that is worth. Obtaining all electronic communications from the relevant actors could also lead to interesting evidence. Congress has already begun this work, but judicial findings would carry greater authority and could help build broader acceptance of the facts. They could also prompt legislation establishing clearer procedures for documenting actual presidential authorization - and clearer criminal sanctions for violations.
Finally, pursuing the issue would help ensure that anyone involved in issuing improper orders is identified - even if criminal sanctions ultimately prove unavailable. Anyone complicit in circumventing legitimate presidential authority should be exposed and recorded for history in what appears increasingly likely to be the most serious breach of executive authority in modern American governance.
