On the issue of double standards, Reps. Matt Gaetz and Lee Zeldin are on solid ground. On legality, well … even Laura Ingraham had to rain a bit on their parade to get Nancy Pelosi investigated by the House Ethics Committee. Ripping up the president’s speech on the dais Tuesday night violated the federal law protecting official government records, the pair argued. “The law does not allow the Speaker of the House to destroy the records of the House,” Gaetz declared, but Ingraham rebutted that argument in part:
Just before his appearance, Gaetz tweeted out the letter he will send to the Ethics Committee today:
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. pic.twitter.com/dXPPWQNtI8
— Rep. Matt Gaetz (@RepMattGaetz) February 6, 2020
Gaetz’ allegation involves subsection (b) of 18 USC 2071, which applies to those who have custody of official records, ie, the legal documents retained by government offices. The consequence of violation is disqualification from public office. But was that copy that Trump handed to Pelosi an official record? Ingraham calls this argument “cute,” but …
INGRAHAM: … I heard today that it’s not really a formal record, because it’s a copy of the speech the president signed. I heard murmurs that — this is cute, but it’s not really going to work.
It won’t work because, strictly speaking, 18 USC 2071 doesn’t apply to Congress, at least not to their personal records. The official record of the speech goes from the White House to the National Archives under the Presidential Records Act, so the two copies that traditionally go to the presiders of each congressional chamber are personal copies only. Even under House rules, members are not required to preserve all their personal records, although any records relating to committee work are required to be maintained:
“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 of New York University 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 claim that Pelosi broke the law is, in other words, a rather silly overreach. The double-standard claim is on much more solid ground. Joe Wilson got censured on a 240-179 vote for his disrespectful comportment during a presidential address, specifically for yelling, “You lie!” in the middle of a Barack Obama speech to a joint session (not a State of the Union speech) that pushed ObamaCare. Wilson turned out to be correct, of course, but that didn’t change the disrespectful nature of the outburst, and censure was considered necessary to prevent further erosion of protocol on Capitol Hill.
Does that concern only extend to Republicans? Regardless of whether Pelosi didn’t violate any law with her speech-ripping stunt, it carries the same potential for escalation of disrespect and disrepute within Congress. In fact, it has even more potential since the stunt was conducted by the highest-ranking member of leadership and not just a backbencher looking for some publicity. If leadership can’t restrain themselves from this intentional disrespect of a president executing his constitutional duty to report on the state of the Union, then these will turn into nothing more than shoutfests and chaos.
The current Democratic majority will almost certainly block any censure motion over Ripgate, of course. That doesn’t mean Republicans shouldn’t raise the issue and point out the double standard. Just ix-nay on the iminal-cray alk-tay.