As I have discussed, the conduct of House Speaker Nancy Pelosi, D-Calif., during the State of the Union was reprehensible and she should either promise to comply with the traditions of the House or step down as speaker. She committed three major transgressions against those traditions in changing the greeting to the President, making critical faces behind the back of the President during the address, and then ripping up the address while still in the Speaker’s chair. That last act has led some to allege that she also violated 18 U.S.C. §2071 in the destruction of an official document. That claim is dubious and should not take away from the more serious question of Pelosi violating her duty to remain a neutral representative of the whole house and not just a partisan member or worse a political troll.
At issue is the protection of public records and documents under laws like 18 U.S.C. § 641 (taking of a public record) and 18 U.S.C. §1361 (destruction of a public record). The primary protection of such documents derives from 18 U.S.C. § 2071 which prohibits destruction of government records or attempts to destroy such records.
As discussed by the Justice Department, this is first and foremost a specific intent crime, including according to some courts knowledge of not just the law but the fact that this is a public document. See United States v. DeGroat, 30 F. 764, 765 (E.D.Mich. 1887). Thus, prosecutors must show that a person willfully and unlawfully; conceals, removes, mutilates, obliterates or destroys; or attempts to conceal, remove, mutilate, obliterate or destroy; or carries away with intent to conceal, remove, mutilate, obliterate or destroy; any record, proceeding, map, book, paper, document or other thing deposited in any public office. If proven it may be punished by imprisonment for three years, a $2,000 fine, or both.
Some have defended Pelosi by saying that she is free from coverage because she is not a “custodian.” That is not a complete defense. There is a separate provision under 18 U.S.C. § 2071 (b) for custodians, but 18 U.S.C. §2071(a) is broader. Thus, I am not sure that I agree with Georgetown Law professor Victoria Nourse that “The point of the statute is to prevent people from destroying records in official repositories like the National Archives or in courts.”
The main problem is that I am not convinced that this is a covered document. The law does not prevent the destruction of any government document in any form. If so, we would have nothing but warehouses from sea to sea. I cannot find any source that stipulates the preservation of this document or even requires that it be given to the Speaker. The Constitution only that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient.” See Article II, Section 3, Clause 1. A tradition evolved in which the President would give that information in the form of an address. However, the Constitution only speaks to giving the information to Congress (later treated as an address) and not submitting a formal document to the Speaker.
Frankly, I was a bit surprised because the Speaker’s copy is a historic document of significance. It should be preserved as part of the history of the House. It is also “official” in the sense that it is the symbol of the President completing his constitutional obligation to Congress. Yet, it is not list as an official document for custodial or preservation purposes.
Thus, the copy given to the Speaker is a historic document worthy of preservation as .one of two copies hand delivered by the President to the Vice President and the Speaker of the House of Representatives. There should be no debate that it should be preserved. However, I could not find any reference to the document. Like the neutrality principles shredded by Pelosi, it is a tradition. It is a copy and a court would likely decline to read the law broadly to find a violation on the margins of the defined covered conduct.
This distinguishes the document from those covered by the Presidential Records Act of 1978. That law is more stringent in preventing the destruction of material from the Oval Office and related offices. Under House rules, Pelosi and members of Congress are encouraged to preserve records or donate them to a research institution for historical study. She was wrong to do this but that does not make it a violation of federal law.
Let’s go back to the first provision:
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
We know that subsection (b) does not apply to Pelosi as a custodian but this provision also refers to something being “filed or deposited.” This is a courtesy copy that is not filed or deposited with the House. Judging from the fact that I could not find evidence that these copies were archived with the House, I assume that past Speakers have kept the copies as personal property. While years ago I wrote an academic study of such records and criticized the view of presidential papers as personal property, a court would likely view this document as the personal property of Pelosi.
Once again, such allegations allow Pelosi to avoid the more difficult and troubling questions but retreating into the thick forest of federal definitions and regulations. The transgression was against the House itself. This is one of the longest and most cherished traditions that goes back to the English parliament. The Speaker at the State of the Union represents all members — Republican and Democrat. The President appears as a guest of both house of Congress and the Speaker has never in the history of our country shown such demonstrative and partisan opposition as part of the address. It is a terrible precedent to establish and apologists for Pelosi degrade both the House and their cause by trying to excuse or even celebrate this outrageous departure from tradition.
Bahahahahahahahahahahahahahahaha!!!
Maybe the people that hire senators and representatives should set their wages instead of letting them set their own salaries. I’m sure a cut in pay would be in order and no pension for one term hires.
Here it comes
Trump unloads at National Prayer Breakfast after acquittal. Now its Nancy’s turn to be branded
All this discussion about the ‘ document ‘ itself ? It’s the symbolism of the act of tearing it up which should be the focus. Regardless of Pelosi’s overt display of disrespect, she inadvertently (?) confirmed why she herself is deserved of disrespect. How do we fix this??? ( You go first )
Nancy has encountered the perfect storm; the party she once led now being steered (toward the rocks), by members of the far left, her diminished ability caused by age and subscription to positions that could only be a product of fallacious reasoning and all exacerbated by a president who she considers inferior to her but is in fact several moves ahead of her in all areas.
I have been racking my brain and trying to figure out a way to stop, in our Government and in this country, all the division and acts of corruption. I see only two options:
The first one is that Nancy Pelosi take a strong stand and declare an end to the constant investigations on the President. It would be the utmost healing and it would allow us to enjoy our election process as it should be. In past years, I would listen to the minority speech following the SOTU. I just didn’t want to this year.
The second way to try and stop this fiasco is to push back, detente. The Senate has already started by requesting documentation from the Secret Service. Andrew McCarthy opined that we should not drag in the Secret Service. It is a shame that the Senate Republicans need to start their own investigations to counteract Schiff’s and Nadler’s declarations of further investigations. Nancy Pelosi can shut this down if she were to try.
So many good people will be dragged into this mess. We should never forget what happened to Carter Page. I am really disturbed as to what they did to such an esteemed individual, Michael Flynn. It is going to get messy with the Durham investigation. As I have stated before, I feel bad for Joe Biden for the loss of his son. VP Biden has not done himself justice. Stepping down may not end all of this. I thought that maybe a bipartisan round table televised discussion by level-headed individuals could bring some peace to this process. I am probably too optimistic. I just don’t know.
You would think our Democracy should right itself as long as we don’t push ourselves over the edge?
Kevin………Years ago we had bumper stickers down here that read:
“Keep Austin beautiful–Put a yankee on a bus” (apologies to my yankee friends)
There is a similar sentiment, with regards to dealing with those who fuel the daily destructive attacks on the President and hia administration. They need to be put on a bus, like yesterday! ..and be driven from office.
It’s bloody obvious and true: The absence of power is the only remedy for making them stop.
What would happen if Trump ripped up paper copies of the articles of impeachment?
And posts a video of the act? And uses the video as a 2020 reelection campaign ad?
I shall opine that the copy handed to The Speaker was and is US Government property. At the least, she destroyed Gov’t property. No different than knowingly and willfully damaging or destroying a seat, desk or door in the House.
If the copies of the speech are supposed to be kept Pelosi added to its value as her destruction of it tells the story of how crazed she and the Democrats have been for over three years. I think that copy should be prominently displayed in their present mutilated form next to another copy with all the President’s accomplishements clearly displayed.
Allan……I second the motion!
https://fas.org/sgp/crs/misc/RS20830.pdf Not to engage in the politics of the matter (Of which the Hatch Act, 5 U.S.C. §§ 7321-7326, prohibits me from responding) but the settled federal case law clearly requires that the essence of the charge is “the rendering of information unavailable to the Government.” Rosner, 352 F. Supp. at 921. The purpose of the statute was to preserve documents “as evidence relating to things which concern the public and the government” and to punish those who seek to destroy such records. McInerney, 143 F. at 731; see also United States v. Poindexter, 725 F. Supp. 13, 20 (D.D.C. 1989) (“obvious purpose of the statute is to prohibit the impairment of sensitive government documents”). Thus, where the defendant removes (or destroys) only a copy, the original is left in tact, and the government is not deprived of the use of the record, no violation of § 2071 occurs.’ (US v.Hitselberger) https://fas.org/sgp/jud/hitsel/040513-dismiss.pdf
I remember laughing while watching videos of legislators brawling and throwing punches in other countries. Pelosi has taken us several big steps closer to that. Shameful.
https://youtu.be/4bhpXhxP-WU
Young,
Maybe we’re heading toward one side booing and heckling, and shouting at the those on the other side of the aisle in Congress.
There are often entertaining examples of that behavior in this backward country😉.
And it would make coverage of events like the impeachment hearings and trial a lot less boring.
It would be degrading.
I think it’d be a refreshing change, Young. Instead of having Adam Schiff appearing in countless interviews backstabbing others, and in return having Trump calling him Pencil Neck in a speech or a tweet, we could have some good old fashioned, on-the-spot trash talking right in the halls of Congress.
What an idiot. Like the is not another copy of this speech. Waste of time. You’re a law professor?
“What an idiot. Like the is not…”
~+~
Sometimes the jokes just write themselves.
Maybe they could impeach her under equally as spurious circumstances as this last charade everyone had to suffer: a taste of her own bitter medicine.
President Barf and his cult couldn’t care less about norms — well, unless papers printed with a public speech are ripped in half. The horror.
It’s like President Obama saluting while holding a coffee-cup. The Right had fire shooting out of their butts. But President PizzaHut salutes a North Korean general or courtesies to the Saudi King and, wow: what a divine statesman.
Republicans are hypocrites and the Democrats are impotent.
*curtsies
No one has ever called Trump a ‘statesman’ let alone a ‘divine statesman.’
Democrats are impotent hypocrites. We can see it now with our own eyes. The Democrats have gotten so much collossally wrong that their media mouthpieces can’t hide it or cover for them anymore.
Friends don’t let friends vote Democrat.
Like I have said for years, it is not “love” that motivates the Left, but sheer unadulterated hatred for deplorable rustic credulous rubes and bitter clingers, and normality in general.
You got to see that from the crone, Nancy Pelosi.
Squeeky Fromm
Girl Reporter
Krauthammer (may his articulate soul rest in peace), would say that Liberals think Conservatives are evil and Conservatives think Liberals are silly.
Professor Turley, thank you for the explanation. I didn’t think since the document Speaker Pelosi ripped was a copy, that she committed a high crime or misdemeanor. 🙂 I do have a question for you. Documents, investigation reports etc. that are locked away in a vault, hidden from OUR discovery, supposedly to be revealed 50-100 years later; how is this acceptable? Why is there not a law that protects what should be our right to know? The purpose appears to be that we who are living in the time of the events, become long expired when the documents are made public to avoid repercussions of what could be disgruntled citizens. This act of locking away documents for secrecy would seem to be in the least an obstruction against the American people’s right to know. I do not accept locking away such documents of proof and investigations is to protect us. We have endured much as a nation, nothing should be kept from us. I’m not talking about combat/war strategy or negotiations with nations. I am talking about events such as the JFK assassination etc.
Your thoughts??
Also, I would like to thank you for your service during the House impeachment inquiry. I found you to be the most neutral of all.
Thank you for your time.
Four Senators — Klobuchar, Warren, Sanders, and Bennett — abused their power by voting to impeach their opponent in the 2020 election. Their personal conflict of interest is obvious. Who will hold them into account for not recusing themselves?
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“I’m concerned that if we don’t impeach this president, he will get re-elected.”
-Rep. Al Green (D-Texas) May 4, 2019
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Leaders like Nancy Pelosi set the tone from the top. Or it may be that Ms. Pelosi is just a follower. Either way, Professor Turley is right. Ms. Pelosi has forfeited any claim to a leadership role.
good observation epstein that’s a reduction to absurdity of the Democrat argument against trump in a nutshell.
as if he can’t act in the public interest just because it might benefit him! preposterous on its face
I hope someone saved the ripped up copy. Historians will want to preserve it someday as a relic of the in civility or this era.
Rep. Gaetz has filed charges against her in the House for Ethics violations and suggested that the ripping might be a violation. I am on the fence on this. I think it was offensive, however, I am not sure if it is criminal. It probably violates Ethical Rules of the House on decorum.
Funny how ripping up a few sheets of paper throws the GOP into a rage while destroying the rule of law just makes them yawn. Oh I forgot …if the President does it, it’s legal. This is a defense that says he’s guilty of the conduct of which he is accused but he is above the law.
You must be talking about Barack Obama when you talk about a president ‘destroying the rule of law’…oh but for Obama, they all applauded, of course!
https://babylonbee.com/news/pelosi-rushed-to-hospital-with-54-broken-bones-after-ripping-pages-of-trumps-speech
I think Pelosi has already paid a high price for tearing up her copy of Trump’s speech.
So she ripped up her copy. It could have been much worse. She could have emulated one of her San Francisco constituents.
She hinted that she wanted to.
You mean that she could defecate on the sidewalk and leave her dirty needles where she just relieved herself? I would pay for the video. The very image makes me all warm inside.