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.
Navarro had also publicly described strategizing with Bannon and House Republican lawmakers on a strategy they dubbed the “Green Bay sweep,” a tactical plan for House and Senate Republicans to formally object to Joe Biden’s election during the certification of Electoral Votes on Jan. 6.
The select committee subpoenaed Navarro on Feb. 9, 2022, and Navarro responded almost immediately that he would not comply because of executive privilege. After weeks of failed discussions between the committee and Navarro, Biden’s White House counsel issued a letter indicating that Biden had determined not to support any claim of privilege over Navarro’s testimony. Navarro then blew off a March 2 deposition date. The House soon held Navarro in contempt and recommended that DOJ pursue criminal charges, which it did in June.
“At no time did the Defendant provide the Committee with any evidence supporting his assertion that the former President had invoked executive privilege over the information the Committee’s subpoena sought from the Defendant,” Aloi noted in her Tuesday night brief. “And at no time in his communications with the Select Committee did the Defendant raise the issue of testimonial immunity, nor even suggest that former President Trump had requested that he communicate any assertion of such immunity to the Committee.”
Mehta appeared to largely align with the Justice Department’s thinking on the matter until late January on the eve of trial, when he raised new questions about whether Navarro might fit within the realm of close presidential advisers who DOJ has long said are “immune” from compelled testimony to Congress. If so, he said, it’s possible DOJ would be barred from bringing contempt of Congress charges against Navarro.
But the department said its prior analyses about immunity — which all pertain to current and former advisers to a sitting president — aren’t applicable to Navarro, a former adviser to a former president.
Mehta is also contemplating whether questions about Trump’s claim of executive privilege should be resolved by the jury in Navarro’s forthcoming trial. But DOJ said this was a purely legal determination that should be resolved before trial begins.
“[W]hile a valid assertion of executive privilege may provide a bar to prosecution, a subpoenaed witness’s mistaken belief that executive privilege was asserted or excused compliance is not a defense at all,” Aloi wrote. “The Defendant should not be permitted to testify about contrary and mistaken beliefs before the jury.”
“Were a jury confronted with credible evidence both that there an invocation by the former President, and that there was not an invocation (and/or an express decision not to invoke) by the current President,” she continued, “there is no fact finding the jury could do that would resolve the conflict.”
