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. “The moral obligation cannot be canceled with nor excused by

    continued violations.”

    Hundeds of wrongs do not make a ‘right’ of being wrong

    If the GOP can clean up it’s act and move to rid themselves of RINOs is it moral for the DNC to move to cast themselves as DINOs by switching to worshippng the manifestos of the extreme left? Sure it takes one a bit of time to shed it’s unacceptables but adding more does the Pelosians and Schumerites no good to continue to dirty their swamp. .

    1. Anonymous – he did not shake hands with either the VP or the Speaker. If you watch the tape at regular speed, you will see that he hands a copy to the VP and then to the Speaker and then IMMEDIATELY turns to the dais.

    2. Pelosi has been snubbing President Trump for Months. He is not required to shake hands. Perhaps he had a cold that day and did not wish to do so.

  2. I beg to differ. The actual copy from the SOTU address for every standing president in history that was given in ceremony is held in the national archive. Nancy Pelosi tore up this one. I would also beg to differ that the copy she tore up was not a legal document and there for irrelevant. Under the Presidential Records Act of 1978 realistically anything all even a scribble on a napkin can be considered a legal document unless specifically specified as personal by the President. In that light i would further have to say that the Office of the President is anywhere the President is at any given time and could produce literally thousands of case law to support it. I challenge you to show me precedence that would pertain to this specific instance that would show that SOTU as trash to be ripped apart on live tv. i will wait….

  3. 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”- Art. II, Sec. 3, Clause 1, USConst.

    The needed element of intent can be proven by reviewing the video evidence of the Speaker concealing the document in question under her desk and also by the fact that, in the video she is seen making small rips in the document’s several pages, for the purpose of being able to easily rip the document’s pages.

    After the SOTU was over, the Speaker acknowledge that she ripped the document in lieu of an unexpressed “alternative” and out of “Courtesy”.

    I ask how can Congress “consider such measures as [the President] SHALL judge necessary and expedient” if those measures that the President was required to proffer to Congress for “their consideration” are no longer, of record and have been destroyed?

    I understand that another copy of the written SOTU had to be re-delivered to Pelosi because she destroyed the official signed original that belonged to congress and not Pelosi. Because the constitution says that the President SHALL give to Congress information, and since Pelosi IS the Speaker of the House of Representatives, that report to congress IS an official constitutionally required report from the President of the United States and MUST be archived.

    The Vice-President, and constitutional President of the Senate did not destroy the Senate’s officially signed and constitutionally required report on the State of the Union but Pelosi did. She did so with aforethought.

    The document report on the SOTU did originate “From the Oval Office” and is therefore a covered document under the Presidential Record Act. Speaker Pelosi IS a Public Official. She DID take receipt of the constitutionally required report on the State of the Union provided to and deposited with her by the President of the United States.

    That the congress may have never archived past documents of the SOTU reports does not indicate that they were not required to have done so. Just that they were non-feasant in not doing so. Furthermore, the document was NOT just a “copy”. It was THE originally signed official report signed by President Trump.

    It is my conclusion that Nancy Pelosi did indeed violate the law.

    1. Furthermore, INTENT is proven by the fact that she was seen IN FLAGRANTE DELICTO, by MILLIONS of people destroying the document.

    2. great argument and if you read above i had an argument of a different point of view of the same result of illegality of her actions.

  4. If it’s such a violation to destroy a public document what about the emails that the president is be having deleted or put into classified files where normally they would not come close to being classified material . Do these rules apply to the president too? Besides they’re probably hundreds of other copies of that speech.

  5. The constitutional requirement is not necessarily that the president give a speech to the House, but deliver a SOTU which can be in written form.
    What if the Dingbat had ripped that up? We can’t have govt by childish behavior.

  6. In a previous article you mentioned the presentation of the Presidential Medal of Freedom to Rush Limbaugh as something similar to “a Mardi Gras bead toss”. I personally found your comment unthoughtful and a bit cavalier.

    Limbaugh was scheduled to be presented with this medal “weeks from now”, it was reported. Having been just diagnosed with Stage 4 lung cancer, which may involve surgery/surgeries and extensive treatment with chemotherapy, I’m sure the presentation was moved up because there is no guarantee he may even be healthy or alive “weeks from now”.

    I was happy the medal was presented to Mr. Limbaugh at the State of the Union speech while he still looks healthy and able to stand to receive it — something which might not be possible after many weeks of chemo.

    Please rethink your position on this.

      1. Yes, or in a back alley. Doing it during a SOTU would be like Obama giving one tonJames Carville – a more benign figure than Limbaugh, but equally partisan – during SOTU. It’s a captured Bi-partisan audience, not a party rally.Examples of Rush’s past purposefully inflammatory and targeting lines are his mocking of dying liberals as “assuming room temperature” while he explained feminism as a way for “ugly broads” to get attention. He also regularly mocked black accents and colloquialisms and described Democrats as anti-American enemies F… him and the horse he rode in on.

        1. Yes. I might have added: …, if at all.

          It should have been presented in the Oval Office, if at all.

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