Was it illegal for Nancy Pelosi to tear up her copy of the State of the Union address?

Question

President Trump has claimed it was illegal for Nancy Pelosi to tear up her copy of his State of the Union address, as it was an official document. Is there any law stating that it is illegal to tear up official documents, and does this qualify under that law as an official document?

Answer 1

While there is an act that President Trump and his supporters are citing, titled the Presidential Records Act (PRA), to accuse House Speaker Pelosi of breaking federal law, it is important to understand what actions the law accounts for. The act mandates that the President of the United States preserve records and other laws governing the federal government. This serves as a form of checks and balances to prevent the president and his advisers from shielding documentary information from public view. The act is fairly new, as it was passed in 1981.

It is important to realize that this law does not apply to print outs or widely circulated documents. Moreover, the copy of the State of the Union that she was given is not a governmental record. Therefore, House Speaker Pelosi did not violate the Presidential Records Act, nor any other federal law.

However, it is open to debate whether Pelosi's action was appropriate, though I will not supply my opinion on that matter.

Answer 2

44 U.S.C. 22

2201. That copy was probably not a record

      (B) does not include any documentary materials that are ...(iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.

I said probably because someone will say “it was not clearly identified as a copy.” I don’t think that is relevant. It was clearly a copy, for her reference and or as a souvenir.

Anyway, it is not her responsibility. She is not in the Executive Branch, and 2203

(a) Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records...

Once he handed out copies, or even if he didn’t, he is responsible to get one to the Archives.

Answer 3

18 U.S. Code § 2071. Concealment, removal, or mutilation generally

(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.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.

There are a few factors worth considering:

1. Was the copy Pelosi destroyed an official document?
   Rep. Carson, the Acting Speaker, said it was the House's official copy for archival and copy purposes. In other words, if it is required for orders of business or referred to by the House, the official copy is called. The allegation is the copy seen ripped during the SOTU is the golden House copy and not Pelosi's personal copy.

   To clarify, her personal copy would be one of the copies generated from the official House copy. It is assumed that she did not have a personal copy at the SOTU address on the podium. The document she's seen ripping up is alleged to be issued by the White House to the House of Representatives for official business (archival and copy purposes).

   Had it been her personal copy, she would be okay to do with it what she pleased (e.g., rip it, shred it, burn it, store it), but if the allegations are true, the argument can be made that Speaker Pelosi may have interfered with official business.

2. Was the document filed with a clerk or officer in any public office?
   "Public officer" is being deliberated, but I believe the Speaker of the House can be considered a public officer.

   An opposing perspective by Victoria Norse, a Georgetown professor, stated it wasn’t officially filed/deposited and was only a copy. To address that statement, I call back into scope the ruling by Active Speaker Carson, which [assuming it was not Speaker Pelosi's personal copy or a different copy] describes it as more than an ordinary copy. After all, this was official business and it takes little effort to assume the official copy is used at this official Constitutional address.
   Assuming it is the House official copy, in order for it to be in the hands of the Speaker, a transfer must have occurred and so it was "filed or deposited" with the Speaker or her Office. I imagine this point will be met with further debate and deliberation; since a simple transfer may not be recognized as an "official deposit". For starters, the code does not qualify it as an official deposit, but simply a deposit (general transfer from one party to another).

3. Was the document willfully mutilated or destroyed?
   One could reason that the tearing/ripping was a form of mutilation and/or destruction.

4. Does Speaker of the House have any special privileges for handling of such documents?
   None that I'm aware of, but I consider this question outstanding until it can be verified.

Note: Congressman Mike Johnson has - perhaps more eloquently - made a similar case.

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References

• 18 U.S. Code § 2071. Concealment, removal, or mutilation generally

• C-Span Coverage of House Session; refer for transcript/video of references to Carson and related decisions

• Congressman Johnson's Statement

• David Schwartz's Comments

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Sidebar

In chat under the original question's comments, David Schwartz listed some interesting points refuting 18USC2071, which are still being researched. The following are my summarization of his claims:

1. Legislative positions are not considered "public officers"

2. The above US Code applies to the judicial branch and may not have jurisdiction over House speeches and debates

I am not confident about Point 1 has any merit. Even if true, the code is not a formal title, but a general position; again, I think it’s reasonable to assume Speaker of the House holds public office and is considered to some extent a public officer. That said, the point can’t be dismissed and must be researched.

Point 2 may have merit. Given the formality and obligation of the SOTU speech, I have other questions. This point warrants research and should continue to be considered in the interim.

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Disclaimer

While I may have studied various forms of tort and civil laws, I do not practice law. To expand, the points expressed here are opinions and not legal advice or judgement in any official capacity. Law is black and white text interpreted by eyes of a wide variety of colors. The above is my opinion of an answer and not necessarily the answer. I offer it for further consideration in an academic sense. Please do not take it as legal advice.