CNN
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Former White House trade adviser Peter Navarro goes on trial Tuesday as the second ex-aide to former President Donald Trump to be prosecuted for criminal contempt of Congress.
Navarro, like Trump ally Steve Bannon, faces charges over his lack of cooperation with subpoenas issued by the now-defunct House select committee that investigated the January 6, 2021, US Capitol attack.
Bannon was convicted by a jury last summer on two counts of criminal contempt in a case he’s now appealed to the Washington, DC, US Circuit Court of Appeals.
While the House committee investigation ended in early January, convictions in the criminal cases arising from the defiance of its subpoenas stand to be a powerful cudgel for congressional investigators in the future who are dealing with recalcitrant witnesses. It may also help draw clearer lines around a former president’s power to assert privilege over aides facing demands from Congress for testimony and documents.
Navarro is facing two counts of contempt stemming from his lack of compliance with the congressional subpoena’s request for both documents and testimony that carry a minimum of one month in prison. He has pleaded not guilty.
Already, the case has prompted a federal judge to issue a significant ruling on what role claims of privilege should play in the prosecution of an ex-presidential aide for contempt of Congress.
US District Judge Amit Mehta, who will be presiding over the trial, concluded last week that Navarro had not put forward enough evidence establishing that Trump had formally invoked privilege or immunity in response to the subpoena, having previously described Navarro’s arguments as “pretty weak sauce.”
Navarro has already previewed the possibility that, if convicted, he’d ask for higher courts weigh in on the legal questions about privilege and congressional subpoena authority that his case presents.
“These are questions that will certainly move up the chains – the appellate level. And as I said at the beginning, this is probably going to the Supreme Court because this is so important,” Navarro told reporters last week. “You can’t have a Congress, a partisan Congress, that abuses the subpoena process for the purpose of punishing the party that’s out of power.”
The Justice Department, which is often in the position of defending an expansive view of presidential privilege, has walked a fine line, as it has sought to square positions it’s taken on immunity for presidential aides in the past with the distinct details of Navarro’s case.
Navarro, brought into the Trump White House to advise on trade, was a prominent face in the administration who earned a reputation for clashing with other top Trump officials behind the scenes. He reportedly came into the Trump orbit during the 2016 campaign after Jared Kushner encountered a book he had written expressing his hard line views on China.
The Trump administration also put Navarro front and center in its response to the Covid-19 pandemic. He spearheaded the effort to streamline the medical supply chain, while also defending Trump’s views on controversial Covid treatments – specifically the drug hydroxychloroquine – that were well outside the medical mainstream.
Navarro’s time in the White House is a source of continuing legal troubles for the former trade adviser, troubles that are not limited to the criminal case.
He is currently facing a civil lawsuit brought by the Justice Department alleging he violated the Presidential Records Act by not turning over to the National Archives emails, said to be government records, on his personal email account. He has appealed the ruling against him in that case.
Navarro’s criminal trial will likely be a “short” one, Mehta said at a pretrial conference last week, and prosecutors have predicted that their case in chief will take no longer than a day.
Jury selection will begin Tuesday morning. Depending on how long that process takes, one or both sides could give their opening statements by the end of the day.
With the judge finding that Trump did not make a formal invocation of privilege, Navarro will be severely limited in the defenses he can put in front of the jury. Prosecutors have argued that the jury need only to find that his failure to comply with the subpoenas was deliberate and intentional.
When the House committee subpoenaed Navarro last year, it pointed to the account in Navarro’s post-White House memoir about the effort to overturn Trump’s electoral loss and other public remarks he made about the plans aimed at the 2020 results. Navarro turned over no documents, nor did he show up to sit for the demanded testimony.
Prosecutors are expected to put on the stand a handful of lawyers who worked for the former committee, who are likely to testify about the panel’s protocols and their interactions with Navarro over the subpoenas.
Navarro’s trial is taking place several months behind schedule, after the judge concluded in January shortly before the original trial date that he needed to give more consideration to Navarro’s claim that Trump asserted privilege that prevented his compliance with the subpoena and whether a jury could consider evidence of such a claim. After months of legal briefings, that consideration came to a head last week with a hearing on what evidence Navarro had to prove a formal assertion of privilege or testimonial immunity had been made.
During the nearly three-hour hearing last Monday, Navarro testified that Trump made it known to him that he didn’t want his former aide to cooperate with the House select committee. He said there was “no question … none,” that Trump had invoked privilege in the matter.
Mehta concluding that Navarro had not carried his burden in proving that Trump had formally asserted a privilege or a testimonial immunity that would have allowed his former aide to not even appear to answer the committee’s questions. Mehta described Navarro’s testimony of a February 20, 2022, call with Trump, where Trump supposedly confirmed that privilege had been asserted, as “nondescript” and lacking in detail.
In handing down his ruling, the judge weighed in on what he described as an “open” legal question: whether a president – or someone authorized to assert privilege on a president’s behalf – needed to personally assert the privilege for that assertion to be valid. Mehta concluded that such a personal assertion was necessary.
“The privilege cannot be validly asserted by mere acquiescence,” Mehta said.
Navarro, if convicted, could tee up the privilege issue as one higher courts should review. Bannon has an appeal underway of his conviction that is focused on how he was not allowed to put forward as a defense at trial the advice of counsel he received before not complying with a subpoena from the House January 6 committee.
Prosecutions of ex-presidential aides for their lack of compliance with congressional probes have been a rare endeavor for the Justice Department. It declined to prosecute former Trump White House officials Mark Meadows and Dan Scavino, who were also subpoenaed by the committee and referred by the House to the Justice Department for contempt. Their dealings with the committee differed from Navarro’s and Bannon’s in crucial ways, with Meadows producing hundreds of documents before withdrawing his cooperation with the probe.
The costs of even fighting such criminal cases – let alone serving the punishment of a conviction – will likely weigh on future witnesses when confronting congressional subpoenas with which they are not otherwise inclined to comply.
Navarro told reporters outside the courthouse last week that his legal bills, including appeals of the case, would exceed $1 million.
“Do I look like a rich man? This is the same suit I wore in 2017 going into the White House,” he said.
