Q: Did House Speaker Nancy Pelosi break the law by ripping up the president’s State of the Union address?
A: Legal experts have widely dismissed the idea that Pelosi’s copy of the address would be subject to a criminal statute cited by some conservatives.
Did Nancy Pelosi tear up an official copy of the speech at the State of the Union Address? Is she liable for any legal penalty?
While House Speaker Nancy Pelosi’s supporters praised her decision to publicly rip up her copy of President Donald Trump’s State of the Union address at the end of his Feb. 4 speech, conservatives lambasted the act, calling it “partisan” and “childish.” But some, including the president himself, went further by alleging that the act was illegal.
“First of all, it’s an official document,” Trump told reporters. “You’re not allowed — it’s illegal what she did.”
The claim that Pelosi violated federal law circulated widely on social media before Trump himself made the suggestion — it was advanced by Charlie Kirk, of the prominent conservative youth organization Turning Point USA, and by Republican Rep. Matt Gaetz, who called for an ethics investigation and said the act was “a potential violation of law (18 USC 2071).”
Readers asked us about the claim and about a viral story circulating online with the headline, “Nancy Pelosi Fined $40K for Destruction of Government Property.” That false story was first published on a website that calls its work “satire.”
Legal experts have widely dismissed the notion that federal prosecutors would try to apply the criminal statute cited by Gaetz — which deals with “concealment, removal, or mutilation” of federal records — to Pelosi’s ripping up a copy of the speech.
“A saving grace of federal criminal law is that it’s applied by prosecutors, judges, and juries with common sense,” Daniel Richman, a law professor at Columbia Law School, told us. Richman, who previously served as chief appellate attorney in the U.S. Attorney’s Office for the Southern District of New York and was a legal adviser for former FBI Director James Comey, added: “That approach makes it impossible to see the aggressive recycling of a non-unique document as anything more than that.”
Similarly, George Washington University law professor Jonathan Turley, who served as an impeachment expert for House Republicans, concluded that it would not be considered a violation of the law.
The specific statute in question refers to someone who “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.”
“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,” Turley wrote on his blog.
Turley opined that the copy “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” and that “it should be preserved.” But, he said, “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.”
Another provision of the statute applies to the destruction of such records by those with “custody” of the records — generally those considered having responsibility for their maintenance. Turley said Pelosi wouldn’t be considered a “custodian” of the copy she received.
Some law professors also have argued that the First Amendment, or the U.S. Constitution’s free speech or debate clause, could be further protection for Pelosi.
It’s worth noting that the National Archives and Records Administration will preserve a copy of the speech — from the White House.
“The National Archives and Records Administration (NARA) preserves and provides access to the permanent records of Federal Agencies and the President in accordance with laws and regulations that govern the disposition of those records,” the agency said in a statement. “NARA will receive the President’s version for preservation as a permanent record in accordance with the Presidential Records Act.”
NARA also said that while it “holds the historical records of the House and Senate, those records remain the legal property of the respective Chambers … [t]he rules governing those records are not determined by federal laws or overseen by NARA, but rather by each Chamber’s agreed upon rules.” The agency said it “does not have information about the record status of Speaker Pelosi’s copy of the speech.”
The conflict reveals the fuzzy rules surrounding the House’s “record status” of the specific copy given to the speaker.
Turley, in his blog, said: “I cannot find any source that stipulates the preservation of this document or even requires that it be given to the Speaker.”
The day after the State of the Union address, House Minority Leader Kevin McCarthy and House Majority Leader Steny Hoyer debated the matter on the House floor. Hoyer argued that Pelosi’s conduct was protected by the First Amendment and McCarthy countered by saying Pelosi “had no right to destroy this document.” But the question of whether the specific, printed version of the speech given to the speaker constituted a “document of the House” went unanswered.
Gaetz, in a column on the website Townhall.com, argued that the signed versions handed to Vice President Mike Pence and Pelosi, as the leaders of the Senate and House respectively, are “original documents” that are “not the ‘personal property’ of the two recipients, but instead, the permanent record (and property) of the two chambers of Congress. When the document is ‘received’ by the Speaker of the House, it becomes an official record of the House of Representatives.”
We asked Gaetz’s office to point us to documentation or evidence that stipulates that process and record-keeping protocol. His office told us that the information was relayed by Republican Rep. Mike Johnson’s office and that Johnson’s office gathered the information from officials in the House clerk and House parliamentarian offices.
A spokesperson for the House clerk, on the other hand, told us in a statement that “the Congressional record of the State of the Union address is the transcribed remarks, as recorded by the Official Reporters of the House. The Clerk of the House has a duty to preserve documents transmitted to the Clerk, and a duty to publish the State of the Union address. The Clerk received the President’s prepared State of the Union remarks electronically, which will be preserved for the National Archives.”
“Consistent with precedent and practice in prior Congresses, immediately after the President’s address to the joint session of Congress, the House, without objection, ordered the President’s remarks to be printed,” the statement said. “The Government Publishing Office has accordingly published the President’s remarks as a presidential address before a joint session of Congress.”
18 U.S. Code § 2071. Concealment, removal, or mutilation generally. U.S. Code. Accessed 7 Feb 2020.
Gaetz, Matt (@RepMattGaetz). “BREAKING: I’m filing an ethics complaint against @SpeakerPelosi for destroying @realDonaldTrump‘s State of the Union speech. Her conduct was beneath the dignity of the House, and a potential violation of law (18 USC 2071). Nobody is above the law. She must be held accountable.” Twitter. 5 Feb 2020.
Garvey, Todd. “Understanding the Speech or Debate Clause.” Congressional Research Service. 1 Dec 2017.
“House of Representatives.” Congressional Record. Vol. 166, No. 24. 5 Feb 2020.
“Remarks by President Trump Before Marine One Departure.” White House. 7 Feb 2020.
Richman, Daniel. Professor of law, Columbia Law School. Email to FactCheck.org. 10 Feb 2020.
Turley, Jonathan. “No, Nancy Pelosi Did Not Violate Federal Law . . . Just Decades Of Tradition.” JonathanTurley.org. 6 Feb 2020.
U.S. National Archives and Records Administration. Email sent to FactCheck.org. 7 Feb 2020.