Legal Analysis

No, Nancy Pelosi Didn’t Break the Law When Destroying Trump’s Speech

House Speaker Nancy Pelosi (D-Calif.) produced a great .gif of performative outrage for the #Resistance by ripping up a copy of President Donald Trump’s State of the Union address on Tuesday evening after he rejected her “handshake of friendship.”

Right-wing critics of the San Francisco liberal icon were quick to trot out their own performative outrage by lying about the application of the law.

“US Code prohibits the destruction of government records,” Turning Point USA founder Charlie Kirk tweeted. “Nancy Pelosi may have just committed a violation of 18 U.S.C. § 2071, Section 2071 (a) when she ripped up President Trump’s State of the Union address.”

Kirk also mused about Pelosi’s alleged “violation” being “punishable by up to three years in prison.”

He is, of course, totally wrong—but Kirk wasn’t alone in feigning outrage coupled with misinformation by citing the statute in question.

Former failed GOP congressional candidate and current commentator Carl Higbie also reached for the fainting pearls.

FYI [Speaker Pelosi] destroyed an official government document,” he tweeted—citing an extremely misleading and edited snippet of the language from the law in question.

The echo chamber primed and ready for its daily deluge of venom, other luminaries, pundits and presidential children chimed in—sticking to the script.

Let’s take a look at the actual statute here.

The law reads, in relevant part [emphasis added]:

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.

Pay attention to the italics and it’s easy enough to understand why Pelosi’s personal shredding gesture would not rise to the behavior prohibited by the statute—and why people like Higbie and Kirk intentionally omitted the language. That’s because the document itself is not covered by the statute at all.

Trump handed Pelosi a copy of the speech. He didn’t file this copy with any official—clerk or otherwise—whose job it is to make sure such documents are collected, recorded and physically and legally protected. The president gave Pelosi a copy of his address as a memento of sorts. This action wasn’t an official deposit. It was an act of theater.

Pelosi responded with her own bit of theater in turn. The action was purely performative just as Trump’s gifting of the controversial speech was itself a performative action. Nothing official happened here one way or another and certainly no laws were broken by the speaker.

In fact, several critics on Pelosi’s left—including her well-funded socialist primary challenger Shahid Buttar–have described her performance as a “meaningless gesture” that belies the speaker’s support for many of Trump’s policies.

Decidedly different fonts of criticism to be sure—both likely to upset Pelosi loyalists and centrist die hards—but at least the left wasn’t acting with newfound fondness for document destruction laws, the likes of which the president himself seems fond of violating with impunity.

Anti-Trump Harvard Law Professor Laurence Tribe put a bow on the pro-Trump misinformation campaign against Pelosi’s alleged kayfabe:

What a dumb idea! Not even Bill Barr would fall for that ludicrous misapplication of the federal law criminalizing mutilation of government records. The copy was the Speaker’s own, it wasn’t a government record to begin with, and her action was purely symbolic expression well within the protection of both the speech and debate clause and the first amendment.

[MANDEL NGAN/AFP via Getty Images]

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