DOJ claims Peter Navarro erred in claiming he was protected from testifying before panel on Jan. 6
WASHINGTON – The The Justice Department said Tuesday that Peter Navarroan aide to former President Donald Trump, has no general claim to executive privilege it would have prevented him from testifying or providing documents to the House committee investigating the Capitol attack on January 6, 2021.
Navarro, a former White House director of trade and manufacturingfaces two counts of contempt of Congress for defying a subpoena from the House panel.
On the eve of the trial in January, Trump formally invoked executive privilege to keep communications with Navarro confidential. U.S. District Judge Amit Mehta adjourned the trial to hear more arguments on the dispute.
The Justice Department argued that Navarro never documented the claim of executive privilege before he was indicted. But even if he had, the committee sought to question him about protests and speeches on Nov. 14, 2020, and about alleged election fraud in a report he released that fell outside his official duties protected by executive privilege.
“The defendant argues that both executive privilege and testimonial immunity excuse his failure to comply with the committee’s subpoena,” U.S. Attorney Matthew Graves said in the filing. “This is wrong.”
Navarro has until April 4 to respond.
Here’s what we know about the case:
Why did the House panel want to question Navarro?
The January 6 committee sought to question Navarro because, in his 2021 book “In Trump Time,” he described the scheme to delay the certification of the election of President Joe Biden in 2020 through a strategy called the “Green Bay Sweep.” Navarro said it was the “last, best chance to wrest a stolen election from the jaws of deceitful Democrats.”
Navarro said in a later interview that Trump was “on board with the strategy,” according to the committee. He also produced a three-volume document called the Navarro Report on allegations of alleged electoral fraud. The panel subpoenaed him for documents about the plan and testimony.
But Navarro told the committee via email that Trump invoked executive privilege to keep their communications confidential. “Therefore my hands are tied,” Navarro wrote.
How does executive privilege fit into the matter?
Navarro’s case could help define executive privilege and the ground rules for criminal prosecution. The doctrine of keeping presidential communications confidential, to ensure honest counsel, is being tested in other criminal investigations.
Former Vice President Mike Pence said he would fighta subpoena from special counsel Jack Smith, who is investigating Trump’s role in the Capitol attack. Trump had urged Pence to turn away voters from seven states that Biden won, but Pence refused.
More: The January 6th committee never got McCarthy, key Trump aide, to testify. Here is who they are.
In another claim of privilege, Rep. Scott Perry, R-Pa., argued at the D.C. Circuit Court of Appeals against the search of federal authorities his cell phone that was seized last summer. Perry was a central figure in planning to overturn the 2020 election and introduced Trump to a candidate to be installed as acting attorney general, according to the House Committee.
Perry’s attorney, John Rowley, argued that his communications should fall under the Constitution’s Speech and Debate Clause, which is intended to protect a lawmaker’s speech from prosecution. But the judges questioned such an open claim of any conversation.
What does the Ministry of Justice argue?
The committee asked to subpoena Navarro via email on February 9, 2022. He responded three minutes later: “Yes. no advice. Executive privilege.” On August 17, 2022, Navarro sought to dismiss the indictment because federal criminal rules state that “when a former president invokes Executive Privilege as a senior presidential adviser, the adviser cannot then be prosecuted.”
But federal courts upheld the House committee’s subpoena power in previous civil cases involving claims of executive privilege over documents. That The DC Circuit Court of Appeals ruled that Biden’s refusal to invoke executive privilege outweighed Trump’s claim, and the Supreme Court refused to hear the case.
More: House Jan. 6 panel recommends DOJ to prosecute Trump on multiple charges. Which ones and why?
The Justice Department argued that there is no blanket immunity from testifying or providing documents — witnesses must make the claim in response to specific questions.
“Arguably, no president, current or former, would have the authority to make a categorical invocation of testimonial immunity over all the information the committee sought from defendants, because most of the information sought by the committee did not relate to matters that occurred in the course of the defendant’s performance of his governmental duties,” Graves wrote in his filing. “No authority exists suggesting that a witness may have absolute immunity from production of documents.”
The department also argued that Navarro should not be allowed to invoke executive privilege during the trial.
“The defendant should not be permitted to testify about contradictory and erroneous beliefs to the jury,” Graves wrote.
Who else has been charged with contempt?
That House recommended contempt charges against four people who defied subpoenas. But the Justice Department charged only two of them and did not explain why it did not charge the others:
This article originally appeared on USA TODAY: Peter Navarro’s executive privilege claim ‘wrong’: DOJ
