Last night, after the State of the Union speech, Nancy Pelosi responded true to form by tearing her copy of President Trump's speech. Conservative defenders of the Constitution are demanding she be criminally prosecuted for destroying government documents. Title 18 U. S. Code 2071 calls for the fine and/or imprisonment of anyone who willfully mutilates any document filed in any public office of the United States.
The Constitution as ratified allows the general government the power to punish three crimes: Counterfeiting (Art. I, sec. 8, clause 6); Piracies and Felonies on the high Seas (Art. I, sec. 8, clause 10); and Treason (Art. III, section 3). So the question we must ask is whether the Speaker's ignoble conduct is meritorious of federal criminal prosecution. As stated above, 18 U. S. Code 2071 falls outside the scope of delegated crimes. So where is the source of the power to pass and enforce this statute? Advocates of punishment are citing the Necessary and Proper Clause.
The Necessary and Proper Clause (Article I, section 8, clause 18) is referred to as the “elastic clause,” or “sweeping clause,” because people assume it grants the government the power to do anything it wants so long as there is a nexus to the enumerated powers, regardless of the logical stretch. The reality, however, is that the clause grants no additional powers beyond those enumerated. As stated by my friends at The Tenth Amendment Center, the clause is merely a “recital,” which, according to the constitutional scholar quoted, Rob Natelson, is, “...a passage in a legal document that has no substantive legal effect, but serves to inform the reader of the assumptions or facts behind the document.” Alexander Hamilton said as much in Federalist #33.
Natelson looks at 18th century contract principles for a better understanding of this clause, and explains that the “incidental” powers arising from a contract must be less important to the principal power, and must also be either a customary way of exercising the power or reasonably necessary to exercising the power listed.
So the next question becomes one of whether Congress has the authority to punish those who destroy government documents, and there is a case to be made for the affirmative. The problem, however, is the Constitution was drafted in such a way that ONLY three crimes were enumerated, and that is what was consented to by the States.
If you argue that the destruction of government documents is justly criminalized, then the next inquiry must be whether the statute should be applied in this instance. Here a woman with a long history of dishonest, partisan behavior, and hatred for President Trump, tore her copy of the text of the SOTU address. The document was not classified; it had nothing to do with national security; it was likely going to leave the chambers on her person, to be shredded anyway. There is also the issue that the conduct is a form of expression - see the First Amendment.
Many freedom-loving Americans want to take these facts and apply them to a childish act of defiance – just more of the same temper tantrum that has been going on for over three years, and raise it to a level worthy of federal criminal prosecution. Who was the victim here? Clearly, Madam Speaker and the Democrat Party, according to the court of public opinion. But that is not enough for the MAGA contingency, defenders of all things they see as just, damn the Constitution. Some have even stated they want to see her hanged for this! Those who steadfastly demand the government stop punishing people for victimless crimes now want to have the book thrown (quoting commentary on social media) at Speaker Pelosi for doing what she does best, making a mockery of herself and her party. If she is to be punished, the appropriate source of her punishment should come from within the Democrat party, not the federal government. To demand more would be inconsistent with the principles we are supposed to hold dearly and uphold impartially.