DOJ: Trump cannot save Navarro from contempt of Congress prosecution

Source: Politico | March 15, 2023 | Kyle Cheney

The trial proceedings have renewed extraordinarily complex issues surrounding the immunity presidential advisers enjoy from being forced to testify to Congress.

Donald Trump never asserted executive privilege to block Peter Navarro from testifying to the Jan. 6 select committee — and even if he did, it wouldn’t have excused the former Trump trade adviser’s decision to blow off the committee entirely, Justice Department prosecutors argue in newly filed court papers.

“[N]o assertion by former President Trump could have covered most of the information that the Committee asked the Defendant to produce in documents or at his deposition,” Assistant U.S. Attorney Elizabeth Aloi wrote in the 26-page brief.

The brief is a bid by the Justice Department to convince U.S. District Court Judge Amit Mehta to keep Navarro’s criminal contempt of Congress trial on track. Navarro had been slated to go to trial in January, but Mehta put it on hold amid a tangle of legal issues related to Navarro’s claim that Trump — more than a year after leaving office — had privately asserted executive privilege. Navarro claims that the purported assertion prevented him from responding to the select committee’s subpoena.

The trial proceedings have renewed extraordinarily complex issues surrounding the immunity presidential advisers enjoy from being forced to testify to Congress, as well as the relatively untested puzzle of what courts should do when a current and former president disagree on assertions of executive privilege. While the Nixon-era Supreme Court has ruled that the incumbent president’s determination carries far more weight, courts have never drawn precise lines — and the issue has remained dormant until Trump’s post-presidential efforts to stymie investigations of his bid to overturn the election.

The issues were similarly prominent during the contempt of Congress trial for Trump ally Steve Bannon, also for defying the Jan. 6 committee. In that case, U.S. District Court Judge Carl Nichols largely rejected Bannon’s arguments that he believed he was immune from testifying to Congress. Bannon was convicted by a jury in July. He’s currently appealing the verdict.

Navarro, unlike Bannon, was a sitting presidential adviser at the time of Jan. 6, which has added additional complexities to his case

But DOJ said there’s no need for Mehta to resolve those thorny issues. Navarro, Aloi noted, hasn’t shown any evidence that Trump actually did assert privilege over his response to the committee’s subpoena. A Jan. 23 letter from Trump’s lawyer — a belated effort by Trump to suggest Navarro was correct to defy the select committee — failed to make the case, she said. That’s because the majority of the select committee’s questions for Navarro had little to do with his role as Trump’s trade adviser, or indeed with Trump at all.

“The committee informed the Defendant that most of the information it was seeking did not concern communications he took in his capacity as presidential adviser at all, but instead related to matters undertaken in his personal capacity with persons outside the government,” the department argued. “Executive privilege, in this case, therefore could not justify a complete default on the Committee’s subpoena.”

The select committee subpoenaed Navarro in early 2022, seeking information about his efforts to support Trump’s bid to subvert the outcome of the 2020 election. Navarro, whose primary official role at the time was responding to the Covid pandemic, spent weeks after the election compiling a report that leveled discredited claims of election fraud. Trump cited that report in the same tweet he urged supporters to come to Washington on Jan. 6 for a “wild” protest.


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