Tag: Navarro

DOJ: Trump cannot save Navarro from contempt of Congress prosecution

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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.”
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( With inputs from : www.politico.com )

March 15, 2023
Judge: Trump trade adviser Navarro must surrender White House-related emails

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“Dr. Navarro contends that he has no statutory duties under the PRA. … This position would defeat the entire purpose of the statute, i.e., to ensure that Presidential records, as defined, are collected, maintained and made available to the public,” wrote Kollar-Kotelly, an appointee of President Bill Clinton. “The PRA makes plain that Presidential advisors such as Dr. Navarro are part and parcel of the statutory scheme in that they are required to preserve Presidential records during their tenure so that they can be transferred to [the National Archives and Records Administration] at the end of an administration.”
Navarro argued that the personal-account provision didn’t apply to messages he received, only to those he sent, but the judge dismissed that contention.
“All the emails in Dr. Navarro’s personal email account, whether created or received, are therefore subject to being assessed as potential Presidential records if they arose out of his employment in the administration,” she wrote.
An attorney for Navarro did not immediately respond to a request for comment.
The tone of Kollar-Kotelly’s 22-page opinion was brutal, but the lawsuit is far from Navarro’s biggest legal worry. He is facing a trial in the coming months on two criminal, misdemeanor charges of contempt of Congress for defying subpoenas from the special House committee that investigated the Jan. 6 Capitol riot and Trump’s role in fomenting doubt about the 2020 presidential election results.
Despite his role as a trade adviser, Navarro drew the attention of congressional investigators because in his final weeks in the White House, he shifted his focus toward efforts to help Trump overturn the 2020 election results. He prepared a report based on discredited claims of fraud and worked with longtime Trump ally Steve Bannon and GOP lawmakers to strategize ways to object to the results on Jan. 6, 2021.
Navarro argued in the lawsuit that he should not have to turn over the disputed emails because the government might seek to use them against him in the criminal case, but the judge also saw no merit in that position.
“Producing these pre-existing records in no way implicates a compelled testimonial communication that is incriminating,” Kollar-Kotelly wrote. She ordered Navarro to turn over “forthwith” about 200 to 250 messages his lawyers have already deemed likely presidential records. She gave the two sides 30 days to sort out a protocol to find other official records in Navarro’s personal account.

The Justice Department is set to make a key filing in Navarro’s criminal case next week, explaining why the department concluded that Navarro is not immune from a congressional subpoena even though he was serving as a top adviser to Trump in the White House in the weeks before and after Jan. 6, 2021.
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( With inputs from : www.politico.com )

March 10, 2023
Trump tries to intervene as Navarro faces trial for defying Jan. 6 committee

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“This confirms President Trump’s position that, as one of his senior advisors, you had an obligation to assert executive privilege on his behalf and fully comply with the principles of confidentiality stated above when you responded to the Committee’s subpoena,” the attorney, Evan Corcoran, wrote on Trump’s behalf.
The letter appears calculated to undercut the ruling of U.S. District Court Judge Amit Mehta rejecting Navarro’s effort to dismiss the cases against him. Mehta noted in a 39-page opinion last week that Navarro had presented no evidence that Trump actually asserted executive privilege on his behalf — even though he made explicit assertions to block the testimony of other former aides.
“Defendant has failed to come forward with any evidence to support the claimed assertion of privilege,” Mehta wrote. “And, because the claimed assertion of executive privilege is unproven, Defendant cannot avoid prosecution for contempt.”
Mehta is unlikely to consider Corcoran’s letter sufficient to derail Navarro’s trial. Navarro had initially claimed in court arguments that Trump told him, during a private conversation, to assert executive privilege before the Jan. 6 committee. But Corcoran’s letter makes no reference to such an assertion.
It’s the second time Trump has made a last-second bid to disrupt the pending contempt trials for aides who defied the select committee. Days before longtime ally Steve Bannon faced a criminal trial for contempt, Trump took the opposite tack — writing a letter to Bannon waiving any potential executive privilege and clearing the way for Bannon to testify to the committee. Prosecutors dismissed the gambit as a stunt to disrupt the trial, and Bannon ultimately took no steps to actually comply with the select committee’s subpoena, even after Trump’s explicit permission.
Navarro, like Bannon, both claimed that they were categorically “immune” from appearing before the Jan. 6 committee to discuss their involvement in efforts to overturn the results of the 2020 election. They said their sensitive conversations with Trump were protected by executive privilege and therefore they could not be compelled by Congress to discuss them. But U.S. District Court Judge Carl Nichols rejected Bannon’s contention, noting that longstanding legal precedents don’t permit witnesses to defy congressional subpoenas even over assertions of executive privilege.
And in both cases, prosecutors noted that there was no evidence Trump had asserted privilege on Bannon or Navarro’s behalf.
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( With inputs from : www.politico.com )

January 25, 2023
Judge denies Navarro effort to dismiss contempt case for defying Jan. 6 committee

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“Defendant has failed to come forward with any evidence to support the claimed assertion of privilege. And, because the claimed assertion of executive privilege is unproven, Defendant cannot avoid prosecution for contempt,” Mehta wrote in the 39-page ruling.
It’s a significant decision in an area with little precedent: what current and former presidents must do to assert executive privilege. Mehta acknowledged that there’s not much to guide how courts should determine when a proper assertion has been made. But he said limited court rulings on the subject suggest there must be at least some formal evidence it occurred.
Mehta noted that two other Trump aides whom the House sought to hold in contempt — Mark Meadows and Dan Scavino — produced letters from Trump ordering them to assert executive privilege on his behalf. The Justice Department declined to prosecute the men, and Mehta indicated that the absence of a similar letter from Trump to Navarro led to a reasonable conclusion that Trump had not asserted executive privilege over his testimony.
Mehta’s ruling means that Navarro’s trial on two charges of contempt of Congress is likely to commence later this month. He faces a maximum sentence of a year in prison on each charge — one for refusing to testify and the other for refusing to provide documents — if convicted.
The select committee had hoped to interview Navarro about his coordination with former Trump adviser Bannon and efforts to strategize with members of Congress seeking to challenge the 2020 election results on Jan. 6, 2021, during the counting of Electoral College ballots. The committee recommended that Navarro be held in contempt in April 2022, and the full House quickly followed suit. The Justice Department charged him in June.
Mehta’s ruling also gutted a series of defenses Navarro had hoped to raise at his trial, including that he had a “good-faith belief” that he was immune from the committee’s subpoena. Mehta also agreed to prohibit Navarro from arguing that the select committee’s subpoena was invalid because the panel didn’t have a full complement of 13 members or a ranking Republican member appointed by GOP Leader Kevin McCarthy.
Although he declined to say whether the committee was operating improperly, Mehta noted that Supreme Court precedent required Navarro to first raise his rules complaint with Congress itself. Because he didn’t do that, he effectively waived that argument. Navarro had argued that raising his complaints to Congress would have been “futile” because the House would have simply rejected them. But Mehta said the rules were clear.
“Neither the Supreme Court nor the D.C. Circuit has recognized a futility exception. … And, given the rationale of the rule, it is doubtful that higher courts would recognize one,” Mehta wrote.

The ruling essentially puts Navarro on a track similar to his close ally Bannon, who was tried and convicted of contempt of Congress in July. Bannon, like Navarro, had hoped to argue that he believed he was immune from testifying and that longstanding Justice Department precedents precluded Congress from subpoenaing advisers to former presidents. But in that case, U.S. District Court Judge Carl Nichols relied on a decades-old appeals court ruling — United States v. Licavoli — to reject Bannon’s proposed defenses, ruling that prosecutors simply needed to show that Bannon deliberately refused to appear before Congress.
Mehta cited the case, as well, in tossing most of Navarro’s defenses.
“Defendant apparently believes the law applies differently to him,” he wrote of Navarro. “Because he is a former aide to the President of the United States, he contends, a more stringent state-of-mind standard applies, meaning that the government must be held to a higher burden of proof to convict him as opposed to the average person.”
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( With inputs from : www.politico.com )

January 20, 2023