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.