Biden’s Doctor Pleads the Fifth

Legal Exposure for the Surrogate Presidency

For four years, the public watched President Joe Biden’s visible cognitive decline play out in real time. There’s no real denying it anymore, so let’s move past that. He had diminished capacity, and it was allowed to continue because it became part of the national political argument. But that stage is over - and now things are turning critical.

Today in Congress, President Biden’s physician invoked his Fifth Amendment right against self-incrimination. While part of the country may not want to keep this issue alive, Congress is - and it should. America needs to confront this - not for political reasons, since no one knows for sure what the political fallout of scrutinizing President Biden’s condition will be - but because our constitutional law does not provide clear answers for how to handle a situation like the surrogate presidency we all just lived through. But we do have laws. And those laws are now under the microscope as investigators begin to trace who knew what, who acted on the president’s behalf, and whether any of it violated federal statutes.

The House Oversight Committee is actively investigating these issues, having already subpoenaed top former aides, including longtime advisor Anita Dunn, policy director Neera Tanden, and White House physician Dr. Kevin O’Connor. Dr. O’Connor has invoked his Fifth Amendment rights, declining to answer questions about the president’s medical condition or about the preparation of medical summaries released to the public. Former President Donald Trump, whose own administration officials may have some overlapping knowledge, has formally waived executive privilege, clearing the way for key witness testimony before Congress. More subpoenas are expected, and DOJ is reportedly conducting a parallel review. The legal implications of what emerges from these proceedings could be far-reaching.

At the center of this inquiry are two interlocking questions: First, was the president, at any time, cognitively unfit to execute his office? And second, did others act to obscure that fact in a way that violated federal law? While diminished capacity itself is not a crime, using the power of the presidency to mask such incapacity, or acting on behalf of an impaired president without lawful authority, may implicate multiple felony statutes depending on the facts that ultimately emerge.

If White House aides or medical professionals knowingly lied in official documents or statements about Biden’s cognitive state, they may be exposed under 18 U.S.C. § 1001, which prohibits materially false statements in matters within federal jurisdiction. That statute is exceptionally broad and has been used to prosecute everyone from FBI agents to cabinet officials. It does not require an oath, only that the falsehood be material and intentional. If, for instance, a public letter declared Biden to be "fully capable" of fulfilling his duties, but that statement was known by its author to be false, criminal liability could attach.

Further, if any individual took part in a coordinated effort to deceive federal bodies or obstruct oversight efforts regarding the president’s fitness, 18 U.S.C. § 371 (conspiracy to defraud the United States) and 18 U.S.C. § 1505 (obstruction of congressional proceedings) may be triggered. The conspiracy statute covers any agreement between two or more people to impair the lawful functions of government through deceit. The obstruction statute criminalizes any corrupt effort to impede congressional inquiries. These are not abstract theories: both have been used in recent years to prosecute public officials who coordinated deceptive responses to congressional investigations.

The possible misuse of the autopen raises separate legal concerns. In 2005, the Department of Justice’s Office of Legal Counsel issued an opinion stating that the president may lawfully authorize a subordinate to use an autopen to sign legislation, provided that the president has made a final decision and personally directed the signature. But that same opinion implicitly confirms that unauthorized use, particularly in the absence of presidential understanding or consent, would fall outside legal bounds. If President Biden was not mentally capable of reviewing or approving documents, and aides nevertheless affixed his signature to bills, orders, or pardons via autopen, they could be liable under 18 U.S.C. § 494, which criminalizes forging the signature of a U.S. official with intent to defraud.

In addition to forgery, such actions could also implicate 18 U.S.C. § 1519 (falsification of federal records) or § 2071(concealment or destruction of records), if the underlying documentation, such as memos about presidential intent or health evaluations, was altered or withheld to support the illusion of competency. If the White House physician knowingly issued false medical certifications, that could trigger 18 U.S.C. § 1035, which governs fraudulent health care statements involving federal programs.

Beyond criminal exposure, the use of the autopen in this context raises a deeper constitutional concern. What is the legal status of a law, executive order, or pardon if the person whose signature appears had no knowledge or understanding of what was being signed? The Office of Legal Counsel’s 2005 memo assumes a president who is fully engaged and giving lawful direction. If that assumption fails, then the legitimacy of entire categories of presidential action could be called into question. That’s not just a legal technicality - it’s a threat to the integrity of the executive branch. This is yet another reason the full truth must come out.

What ultimately emerges will depend on the testimony of witnesses and the paper trail left behind. Key questions will include: Did the president approve autopen usage for specific documents? Was he capable of understanding what he was signing? Were medical summaries truthful at the time they were issued? Did aides coordinate talking points or restrict access to prevent cabinet officials, Congress, or the public from learning the truth? Each affirmative answer could become another brick in the wall of criminal exposure.

Intent will be central. A mistaken judgment about the president’s abilities is not a crime; a willful cover-up, carried out through deception or document falsification, very well may be. If the facts show that senior officials knowingly acted on behalf of a president who could not understand or approve the actions taken in his name, the Department of Justice could be compelled to act.

It’s clear that the man we saw on stage during the last presidential debate was not capable of running the country. The charade should have ended long before then. If testimony and evidence confirm that intentional deception or fraud occurred in the exercise of executive power, the statutes are already on the books. The only question then will be whether prosecutors choose to enforce them.