No, Nancy Pelosi Did Not Violate Federal Law . . . Just Decades Of Tradition

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.

300 thoughts on “No, Nancy Pelosi Did Not Violate Federal Law . . . Just Decades Of Tradition”

  1. Karen’s go to source for much of the BS she posts here, and who’s emails to Parnas asking his approval of columns are now public, is so compromised that even Fox News gets it. His fellow Guliani Ukrainian team members and oligarch lawyers DeGenove and Toensing’s cover is also blown,

    “An internal Fox News research briefing book obtained by The Daily Beast openly questions Fox News contributor John Solomon’s credibility, accusing him of playing an “indispensable role” in a Ukrainian “disinformation campaign.”

    The document also accuses frequent Fox News guest Rudy Giuliani of amplifying disinformation, as part of an effort to oust former U.S. Ambassador to Ukraine Marie Yovanovitch, and blasts Fox News guests Victoria Toensing and Joe diGenova—both ardent Trump boosters—for “spreading disinformation.”

    The 162-page document, entitled “Ukraine, Disinformation, & the Trump Administration,” was created by Fox News senior political affairs specialist Bryan S. Murphy, who produces research from what is known as the network’s Brain Room—a newsroom division of researchers who provide information, data, and topic guides for the network’s programming…..”

    https://www.thedailybeast.com/fox-news-internal-document-bashes-john-solomon-joe-digenova-and-rudy-giuliani-for-spreading-disinformation

    1. Take note. The Dailybeast article is totally unverified like many of their prior articles that proved false. John Solomon provides the documents and transcripts for his articles and posts them on the net for people to draw their own conclusions. People can create their own conclusions but they can’t create their own Facts.

      Anon tried to create his own facts with regard to America’s energy independence just recently but his sophistication wasn’t high enough for Anon to actually understand the topic at hand. Poor guy. He likes to argue but doesn’t have the knowledge to know what he is talking about.

  2. Professor Turley, I have been a follower of yours for many years and your writings have often been met in my conversation with myself with a “wow just as I thought”! This article or post or whatever it is reflects my opinions on the actions of the Speaker of the House so eloquently it should be mandatory reading for everyone. I have been a registered, voting Democrat for all my adult life until the last few years when I became more of an independent. I voted for Obama but could not support Hillary so was left out of the last election. However, Pelosi’s horrendous display of pure hatred not only of the President but of half of the voting population of this country both shocked and dismayed me. The President has made disgusting comments about and to certain individuals but he has never demeaned the citizens who voted against him. She should step down as Speaker before actions such as hers and the rest of the Trump haters possibly convert us Independents to become a Trump supporter. I am 78 years old and I hope I live long enough to see decorum and civility return. Probably not going to happen but one can always hope. Thank you for giving me the ability to see my thoughts through your writings.

    1. Beth Cooley – as a 76 yo Independent, no Democrat is getting my vote this cycle and probably the next one.

  3. Oh com on. This is Trump. She could dump her water glass on his head and it would be ok. Trump is a total sleaze ball. Russian mobsters and money laundering, porn stars, good grief.

  4. Nancy, girlfriend…The smart move in this situation, is to let the ‘other person(s)’ look like the bad guy. He didn’t shake your hand, as tradition has it, okay….so here’s what you do? Look to your right at Pence, who will not acknowledge you, then look to your left in astonishment, and then throw both your hands up in the “I don’t know what just happened….move,” and that’s it. That way, the onus is still on him, and not you.

    There is saying in life, and in psychology….

    I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it.

    ~George Bernard Shaw

    1. OMG! She quoted George Bernard Shaw (one of those pesky men) in a “feminist” TED talk!
      _________________________________

      “Toto, I’ve a feeling we’re not in Kansas anymore.”

      – Dorothy
      ________

      This calls for Superman!

      Mespo, could you parse and critique this cerebral, erudite and cogent thesis for the audience?

      1. I actually don’t know Shaw all that well, but I do like this/his quote…taken out of context.

        In fact, I got it from an M.D./PhD acquaintance of mine (probably more degrees than you have, I’m guessing…). But that is besides the point, it is a very versatile quote.

        Dream on, George….Isn’t it time for your nap time? 😉

      2. P.S. George, TED talks are so 2000-8, who even watches those….

        Ah, but you see! Here is me, now, rolling in the mud with you….I think I will pass. Just a big Pass!

        Peace Peaches! 😀

        1. P.P.S. I really like Mespo’s comments, as well as his writing style, which I personally believe is the best on this entire comment section of the b-law-g.

          1. WW33:
            So kind. I really don’t know how I write. It truly does just form in the ether of my mind. Despite the best effort of my fingers, it just comes rolling out. I do believe in reincarnation and feel sure I’m just the latest iteration of some medieval monk scribing away at some other persons thoughts. Sometimes good and other times just not so. My thoughts always tend to the classics. Not sure why that is either. I do love them so.

      3. Oh, and Peaches, less is more with the verbiage….okay, dear…..

        For example, you don’t cause me much umbrage, but you’re really just being glib. Everyone knows TED talks is just a boondoggle. What’s that? Is that the sound of your voice sounding like a cacophony….no, I don’t think so, it’s just that gnawing sense of ennui that I get…..when you open your mouth.

        Mwahahaha 😉

          1. ::Kissy Face::

            Well, at least you came back to fight your own battles…

            It’s been fun, Peaches.

                  1. Hold on, Anon, let me get a mirror and hold it up for you, so you can see yourself. Can you see yourself now?

                    Have you see some of the asinine comments that have come from yourself? That’s, of course, assuming you are the “same” person with each ‘Anon’ comment.

                    No need to defend, your boy, Boy George; he started this whole deal with his Wizard of Oz comment.

                    If he’s got jokes, I got jokes up my left sleeve, and my right sleeve, all day, any day of the week. Zingers all around.

            1. Did you get your fair share of “Affirmative Action Privilege” today?

              Oh, perhaps you broke through a pesky “man’s” glass ceiling today; shore wouldn’t want to generate your own enterprise and/or wealth.

              Be sure to capture those “entitlements for the needy; that government provided “success.”

              I hear you ROAR…for more and evermore of that “man’s” money.

              You go, girlfriend!

              P.S. The American/Western fertility rate is in a “death spiral” in case you don’t have anything else pressing.

              1. Are you suggesting I should have children…..in your P.S. comment?

                I am open to it, if you have any men that you know of that need a wife asap, and can afford one (under reasonable terms), and are willing to provide me with a marriage license as “proof” prior….let me know. I am open to it.

                But see, most men, in my age range, can’t afford it, hence….not happening, but with that said….

                Also, I have a list of things I need from this man, that you will be providing me….including….

                1. No smoking, both types
                2. No drinking, only social drinking allowed
                3. No addictions, including video games, gambling, etc.
                4. Absolutely no high spectrum narcissist
                5. No domestic abusers, that includes physical and mental/emotional

                Let me know, George!

              2. I’m also willing to entertain anywhere from 2 to 5 children….but with that said, this “man” you are providing me with….he needs to be able to afford them.

                I hear the cost of raising a child today is outrageous. I am assuming I will be staying home, which is fine with me, but again, this “man” needs to cover any and all cost.

                I wish you the best of luck in finding one for me! 🙂 And I really am laughing over here, b/c this is going to be a tough task for you.

                1. Also, if you can catalog these “men” / “suitors” for me, and set-up all the first dates too, that would be much obliged.

                  Remember, the key here is “affordability,” so you might need to see some bank statements, credit scores, and employment records before putting them in the/my suitor book.

                  1. WW3 – would you like to give us minimum salary requirements, credit scores, etc. so we can do the screening?

                    1. Salary is relative to where you live, so here, it would need to be more, like a Yelp 4 $$$$…. esp. if you are adding on extra mouths to feed….but say, Idk, Montana, it’s not going to cost as much, maybe its a 2 $$, on the salary.

                      I am open to moving too, so that broadens things….I have no roots, just staying here, where I am now, for familiarity/comfort reasons.

                      Credit score, ~ 750. Or, at least ~ 700.

                    2. Also, since you’re helping in the search. No rage-ers. That’s borderline rage or narcissism rage.

                      I do not want my car keys hidden from me under the mattress, while I am digging through the trash looking for them, or any other passive aggressive behavior that a psychologist would deem to be abnormal…then, no, thank you.

                      These “suitors” might need psychiatrist screening too.

                    3. WW33 – I think at this point I must ask the “hard” questions. What age range and sex are you looking for?

                    4. Linda Forchet : Why do I always get stuck with crazy men?

                      Major Charles Rane : ‘Cause that’s the only kind that’s left”

                      Mr. Schulte,
                      W 33’s last comment on the personality/mental stability requirements reminded me of a line from a late 1970s film, Rolling Thunder.
                      A very young William DeVane and Tommy Lee Jones star in it.
                      Major Rane is played by DeVane, bent on revenge again a group of murderers.

                    5. Paul, I didn’t know you had a dating service. WW3 has a lot of requirements but almost all of the men capable of filling them will already be married. We think women are in a suspect class for discrimination, but they really aren’t. Our present society has been very damaging to men and that has caused tremendous problems for decent women trying to find a good man. Once again the leftists can’t see further than their noses.

                    6. Allan – I guess I can start a dating service. 🙂 Craigslist has one, why can’t I?

                    7. Go ahead Paul. Start your dating list. WW33 is in trouble. Society is seeing to it that men can’t meet reasonable standards while women complain they can’t find one.

                    8. As Allan pointed out, she has a loaded up a lot of conditions for you to deal with as a matchmaker, Mr. Schulte.
                      And like he said, a lot of those guys that meet those conditions will be married men.
                      Hell, I bet she even demands that the guy has to be unmarried for her to consider dating him.
                      Talk about picky!😉

  5. Geez, the speech was on television and the text printed in newspapers. No one needs this copy of the text for their archives.

    You miss the forest for the trees in your unending quest to carry Trump’s water.

    1. Right? I mean, Nancy could’ve torched it and set off the sprinklers. True performance art. All in all, solid commentary on her end though.

      1. Elvis – as a former theatre director, I give her an A for wearing white behind the President, so she can draw attention from him. I give her an F on her facial mannerisms, they made it look like her dentures (if she has dentures) need to be refitted. I give her a C+ on going through the speech in the background, drawing attention from the President. The problem was putting the papers in smaller piles that she pre-ripped (started).

        I give her an A on playing to her base with the tearing and an F- with everyone else. There are now life-long Democrats who will no longer vote Democratic because of her.

        1. Solid eye for detail, although she can’t touch Paul Ryan with eye rolling and smirking in the background. I can see your flair for the dramatic with the “life-long Democrats who will no longer vote Democratic.” Don’t believe it, but it is total feinting couch material. She’s the perfect Trump antagonist.

          1. Cindy Bragg – it was more planned out, so I am saying 5 or 6 yo sandbox tantrum.

  6. Sigh…this is what we get when we have a bunch of 70 and 80 year old politicians that are entangled with lobbies and corporations. They are ALL acting like children – very rude, hateful children – and Trump is leading the bunch. He set the tone on the campaign trail with his silly name-calling and ‘gossipy style’ of; ‘I’ve heard…or, someone told me…’ and he hasn’t changed even though he’s the leader of our country.
    Vote ALL the incumbents out, legislate term limits (even the president gets only 8 years) and do away with lobbyists.
    You want change…forget the president and get rid of Congress.

  7. ‘If the Democrats have zero problem blatantly stealing an election from their own presidential front-runner in broad daylight while everyone is watching, can you imagine what they’re currently planning to do to steal the election in November? They will stop at nothing.’ @seanmdav

      1. We had an appellate case in WA where tweets of legislators are now considered public records and subject to public disclosure. I agree with this statutory interpretation but I consider it to be risky to rely on third-party corporations to be quasi-official transmitters of public information and communication. This should be under the purview of the state. There exists non-proprietary internet protocols to address this such as RSS feeds and list servers and those should be used. Twitter and Facebook have shown a tendency to censor content and hold subscribers to often arbitrary terms of service. Plus, the records are not owned by the state which puts them under a less reliable standard.

  8. WOW, surprisingly missing from your rants is the [repub] senators’ duty to remain neutral and hear all the facts. Not surprised as I know you are panting for an appointment to the SCOTUS.

    1. The senate is not obliged to hear “all the facts”, just the facts of the case presented. If the Dems wanted more facts considered, they should have presented them instead of rushing to smear the President.

  9. Mitt Romney & the Mormon Latter Day Saints are getting new messages from God:

    1. We’re Not Trying to Convert You
    2. The Bible is Insufficient
    3. We’re the Only True Christians
    4. We’re the Only True Church
    5. We Have a Living Prophet
    6. The Book of Mormon is Scripture
    7. You’re Saved By Works
    8. People Can Become Gods
    9. You’re Born Again By Becoming a Mormon
    10. Temple Marriage is Required for Eternal Life

    1. Yeah, crazy stuff, but I like Mormons still. Sobriety is under-rated. I just dont like Romney that pious fraud.

  10. JT, Proper decor is the least of the problems in US politics. USGinc. is overthrowing governments, something Nancy fully supports as she is visiting with Juan Guano today. Nancy fully supports giving Don more money for war, surveillance and even a space force! Nancy agrees that bank executives need more breaks and should get bailed out. It’s not proper decorum that we need as much as we need an accountable government. Neither major party believes in accountability which is why they all passed and Donnie signed, FASBI 56. The DOD can’t account for 32 Trillion just last year! But she, lack of decorum is devastating our nation!

    1. Jill, I thinkt the entire U.S. annual budget is about $4.5 Trillion.
      DOD budget is probably about $800 Billion, or less than 20% of the entire budget.
      Your statement that the DOD can’t account for $32 Trillion is way off.

      1. It’s a talking point she got from her favorite ‘news’ service. (Which is some dame in St. Cloud, Mn. with a website). With Jill, brazen nonsense is a hot knife through butter if it’s the right kind of nonsense.

    2. “32 Trillion just last year” -Jill

      Not “last year,” but there are problems, to be sure:

      “Holding U.S. Treasurys? Beware: Uncle Sam Can’t Account For $21 Trillion”

      https://www.forbes.com/sites/kotlikoff/2019/01/09/holding-u-s-treasuries-beware-uncle-sam-cant-account-for-21-trillion/#

      “Exclusive: The Pentagon’s Massive Accounting Fraud Exposed”

      “How US military spending keeps rising even as the Pentagon flunks its audit.”

      By Dave Lindorff

      https://www.thenation.com/article/archive/pentagon-audit-budget-fraud/

      “In all, at least a mind-boggling $21 trillion of Pentagon financial transactions between 1998 and 2015 could not be traced, documented, or explained, concluded Skidmore. To convey the vastness of that sum, $21 trillion is roughly five times more than the entire federal government spends in a year. It is greater than the US Gross National Product, the world’s largest at an estimated $18.8 trillion. And that $21 trillion includes only plugs that were disclosed in reports by the Office of Inspector General, which does not review all of the Pentagon’s spending.”

      1. https://www.politifact.com/factchecks/2018/dec/03/alexandria-ocasio-cortez/alexandria-ocasio-cortez-wrong-scale-pentagon-acco/
        I think AOC’s confusion over some accounting basics was what drew attention to this issue. Her misunderstanding was widely reported ( NY Times, WA Post, etc.)
        There is evidently a “bookkeeping problem” , or at least problem retrieving millions (or billions) of dollars of “transactions”.
        E.G., a family has a household income of $80,000 a year. For the sake kc simplicity, let’s say they spend tbe entire $80,000 every year. The husband and wife each gave separate checking and savings accounts. If you total up the amount of each and every “transaction” that household makes over a period of years or decades, you could have tens of $millions of dollars in “transactions”, if you total up each and every bill paid, transfer of funds, etc.
        Even if the $80,000 annual income was given in one check in a lump sum every year, and the $80,000 was written out in only one check covering all bills, that is $160,000 in “transactions” for that year.
        Of course, there are many more credits and debits, many more “transactions”, than in the example above. The $80,000 income is not in one lump sum, nor is just one check written to cover groceries, mortgage, car payments, insurance, etc.
        Maybe a better example is if someone puts $100 in their checking account ten different times a day, and immediately takes out $100 with their ATM card after each deposit. That’s $20,000 of “transactions” you could get with multiple credits and debits, but actually involving only $100.
        And if you don’t keep or can’t retrieve the records for any of these transactions, you could say that there is “$20,000 in transactions unaccounted for”.
        I couldn’t even try to estimate the total dollar amount of total transactions in a defense budget of $650-700 Billion a year, but it could easily be in the $Trillions of dollars.
        AOC may not comprehend these basics, but she should at least have a staff that clears statements like she made before she puts them out publicly.

        1. Anonymous – doesn’t AOC have a degree in Economics or something. She should understand these things or have them explained to her. She has a staff, doesn’t she?

            1. mespo – according to Wikipedia, who I believe in the case at this point, she majored in economic and international relations at Boston University. She graduated summa cum laude. What about her makes you think both departments should be decertified? 🙂

              1. Mr. Schulte,
                She was a bartender and I don’t know what else before getting elected.
                If the bar took in $1,000 in sales on her shift, it’d be common to total up the receipts without without breaking down every transaction.
                So if a customer gave her a $20 bill for a $5 drink, she wouldn’t necessarily have recorded a $20 transaction and a $15 transaction for change. So that $5 drink technically involved a $35 “unreported” transaction.
                She should even need a degree in economics to understand that.

          1. Alhysteria O’crazio Corkheads graduated cum laude from Boston University College of Arts and Sciences with a BA in 2011, majoring in international relations and economics.[9][26][27]

            – Wiki

            1. George – as I said to mespo, shouldn’t the economics and international relations departments of Boston University be decertified if AOC graduate either cum laude or summa cum laude?

              1. Affirmative action, grade inflation, the influence on male professors, bias protection/wrongful failure – she’s got it all.

  11. This wasn’t an impulsive reaction in response to content; this was a premeditated act in the form of public “spectacle” in response to acquittal.

    Democrats continue to lower the bar on decorum and civility. Meanwhile illegals are everywhere, crime is rampant, our cities are sh*tholes, our universities have gone “commie,” and the political class continues to Biden millions if not billions out of foreign entities. And what do they promise in return for our allegiance? Higher taxes, higher taxes, to those who in many cases already forfeit forty to forty-five percent of their labor to government and its phony political causes.

    As if Ukraine was REALLY our concern, right? RIGHT? And yet Western Europeans remain politically distanced and unconcerned as expressed through the big fat zeros of their
    foreign aid.

    Democrats have done NOTHING to address the concerns of the People in my lifetime. And I am old as hell! What we get instead is what Pelosi delivered this morning – hollow promises and lies about past performance. And continued attacks on the law-abiding citizen-taxpayers and those who would defend them.

    The SOTU in a nut-shell: A Sad State Of Affairs!

    Very interesting analysis, btw…

  12. I don’t know why you’re talking about traditional behavior when all of “traditions” have gone out of the window with Trump!!! This is the new decorum approved and endorsed by Trump, his spiritual advisor and Moscow Mitch.

    This is Trump and the GOP revamping Congress and it’s “traditions” and decorum. Four more years! Get use to it.

    1. Miki:

      “I don’t know why you’re talking about traditional behavior when all of “traditions” have gone out of the window with Trump!!!”
      **********************
      The Dims corrupted it to the core. And Amen to throwing those globalist, corporatist Dims out on their arses.

    2. Miki Dash forgot to mention the foreseeable backlash against “The Squad”, Pencil Neck, and the Toad Nadler.
      When you send people like the those of the squad to Congress, when Pencil Neck has been trying so hard for years to find an impeachment basis to hang his hat on, when Nadler and Schiff Committees decide on the gimmick of subpeona cannons, don’t expect the other side to calmly and passively sit there and take it.
      Even Trump himself may no longer play Mr. Nice Guy😁 this election cycle.

    3. In other words, they stooped as low as Trump and then stooped much lower. As a lifelong Dem, I don’t see myself ever returning to that party.

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