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Kirk misapplied a federal statute designed to prevent people from destroying records in official government repositories like the National Archives.
Pelosi ripped up her own copy of Trump’s address, not the official version sent to the National Archives under the separate Presidential Records Act.
One conservative pundit said she deserved more than just the ridicule of her GOP colleagues.
"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," Turning Point USA founder Charlie Kirk wrote in a Feb. 4 tweet. "This violation is punishable by up to three years in prison."
US Code prohibits the destruction of government records— Charlie Kirk (@charliekirk11) February 5, 2020
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
This violation is punishable by up to three years in prison
But when we asked a number of legal experts about what Kirk said, we found that their answer was unanimous: Kirk’s claim is wrong.
"I take it that this is a printout of the Trump speech, in which case it is absurd to suggest that Pelosi can be prosecuted for doing with it whatever she pleases," said Heidi Kitrosser, a law professor at the University of Minnesota.
"Anything that comes out of the office of the president is a government document under the Presidential Records Act of 1978," the statement said.
The statute in question deals with the "concealment, removal, or mutilation generally" of records and reports. It sets a penalty for anyone who "conceals, removes, mutilates, obliterates, or destroys" any government record "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."
The statute also says that any person with "custody" of a government record cannot "willfully and unlawfully" conceal, remove, mutilate, obliterate, falsify or destroy it.
"The point of the statute is to prevent people from destroying records in official repositories like the National Archives or in courts," said Georgetown Law professor Victoria Nourse.
Pelosi is in the clear, experts said, because her copy of Trump’s speech wasn’t a government record.
The State of the Union text was never "filed or deposited" with her, nor did she have "custody" of it in the legal sense. Video of the event shows that Trump handed her and Vice President Mike Pence copies before he began speaking, and Pelosi can be seen following along throughout.
President Donald Trump hands copies of his State of the Union address to House Speaker Nancy Pelosi and Vice President Mike Pence before delivering it to Congress on Feb. 4, 2020, in Washington. (AP/Semansky)
"Her copy of the State of the Union address is not a government record or government property at all," said Douglas Cox, professor of law at the City University of New York School of Law and an expert in the laws governing the preservation of government records. "It is personal property."
Under House rules, members of Congress are encouraged to preserve records or donate them to a research institution for historical study, Cox said. Unlike congressional committees, members are not legally required to hold onto their office’s files.
"They can keep them private, they can destroy them, or they can rip them up," he said.
This is in contrast to presidential records, which have been considered government property since the Presidential Records Act of 1978 and are supposed to be stored with the National Archives for safekeeping.
"The State of the Union is a presidential record, which must go to the National Archives under the Presidential Records Act," Nourse said "(Pelosi) did not mutilate the record that is filed with the Archives."
The purpose of the records law "is to prevent someone from depriving the government from the use of its documents," so Pelosi’s move "doesn’t fit within the statute," added Kathleen Clark, professor of law at Washington University in St. Louis.
There are probably countless copies of Trump’s address, such as the version the White House posted online. Pelosi’s action doesn’t preclude future generations from accessing one.
"If the statute were not read this way, then any copy of the State of the Union held by anyone could never be destroyed," Nourse said.
For what it’s worth, Trump has a habit of ripping up papers when he’s done with them. According to Politico, staff members have had to tape Trump’s shredded files together in order to send them to the Archives and avoid crossing the Presidential Records Act.
Kirk said, "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."
Experts told us that’s a misapplication of a law. The papers Pelosi ripped up did not belong to the government, nor were they the only copy of Trump’s speech in existence.
We rate this statement Pants on Fire!
Charlie Kirk on Twitter, Feb. 4, 2020
Dan Bishop on Twitter, Feb. 5, 2020
Carl Higbie on Twitter, Feb. 5, 2020
Donald Trump Jr. on Twitter, Feb. 5, 2020
C-Span, "2020 State of the Union Address," Feb. 4, 2020
NBC News on YouTube, "Watch Nancy Pelosi Rip Up Copy Of President Donald Trump’s State Of The Union Speech | NBC News," Feb. 4, 2020
Government Publishing Office, "18 U.S.C. 2071 - Concealment, removal or mutilation generally," accessed Feb. 5, 2020
The National Archives, "Presidential Records Act (PRA) of 1978," April 27, 2018
U.S. House of Representatives, "Personal Papers of Members of Congress," accessed Feb. 5, 2020
U.S. House of Representatives, "What Is a Record?" accessed Feb. 5, 2020
U.S. House of Representatives, "Accessing House Records," accessed Feb. 5, 2020
The Department of Justice Archives, "Protection of Government Property - Protection of Public Records and Documents," Jan. 17, 2020
Politico, "Meet the guys who tape Trump's papers back together," June 10, 2018
Email interview with Kathleen Clark, professor of law at Washington University in St. Louis, Feb. 5, 2020
Email interview with Douglas Cox, associate professor at the City University of New York School of Law, Feb. 5, 2020
Email interview with Victoria Nourse, professor of law at Georgetown Law, Feb. 5, 2020
Email interview with Heidi Kitrosser, professor of law at the University of Minnesota School of Law, Feb. 5, 2020
Email interview with Andrew Kolvet, spokesperson for Charlie Kirk, Feb. 5, 2020
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