Federal prosecutors are expected to present the case on Wednesday that former Trump White House official Peter Navarro should be convicted of contempt of Congress because he wilfully ignored a subpoena issued last year by the House January 6 committee during the investigation into the Capitol attack.
The only standard that prosecutors will have to reach is that Navarro’s failure to comply with the subpoena was deliberate and intentional – and Navarro will not be able to argue in defense that he blew off the subpoena because he thought Donald Trump had asserted executive privilege.
Navarro is about to face his contempt of Congress trial without what he had hoped would be his strongest defense, after the presiding US district court judge Amit Mehta ruled last week Navarro had failed to prove Trump had actually asserted executive privilege to block his cooperation.
In an added twist, prosecutors also said the day before trial that they intend to argue that Navarro’s claim of executive privilege was actually self-incriminating because it reinforced his failure to comply with the subpoena was calculated and deliberate, according to court documents.
That sets the stage for a trial in federal court in Washington which could end in a quick defeat for Navarro given his lack of defenses, though the consequential nature of the case could also mean it immediately becomes tied up for months on appeal.
Navarro was indicted last June on two counts of criminal contempt of Congress after he was referred to the justice department for prosecution for defying the January 6 committee’s subpoena demanding documents and testimony about the former president’s efforts to subvert the 2020 election results.
The former Trump adviser has long insisted he could not comply with the subpoena because Trump had asserted executive privilege and he was obliged to protect his confidential discussions with Trump when he was the president.
But Navarro has faced a reckoning in the months since, unable to produce any direct evidence from Trump or Trump’s lawyers supporting his claims, and the judge found in recent hearings that even Navarro’s most compelling pieces of evidence lacked substance.
The lack of actual evidence for the executive privilege assertion – even though Navarro swore to it under oath – was cited repeatedly by the judge when he ultimately decided that Navarro could not raise the executive privilege issue at all as a defense at trial.
“There was no formal invocation of executive privilege by [Trump] after personal consideration nor authorization to Mr Navarro to invoke privilege on his behalf,” Mehta said, adding Navarro had not met his burden to show a valid assertion.
The standard for a valid executive privilege assertion is three-fold, Mehta ultimately ruled: it must be made by the president or an authorized representative, it must be made after personal consideration, and it must be specific to the subpoena in question.
One letter addressed to Navarro after his indictment from the Trump lawyer Evan Corcoran saying Navarro had an obligation to protect executive privilege was unsatisfactory because it notably did not say Navarro was authorized to invoke on Trump’s behalf, the judge found.
And a second letter addressed to Navarro informing him that Trump had asserted executive privilege over a different subpoena issued by the House select committee investigating the Trump administration’s Covid response was not applicable to the January 6 committee subpoena, the judge found.
Still, even if Navarro had been able to prove a privilege assertion, it was unclear whether he would have been in a different position. Mehta noted, for instance, that Navarro would have still needed to testify about non-privileged topics and produce a log of documents he was withholding.
Last February, Navarro was subpoenaed by the January 6 committee after he played an outsized role in Trump’s efforts to overturn the 2020 election results and was briefed on a plan to obstruct the congressional certification of Joe Biden’s election win dubbed the “Green Bay Sweep”.
After he skipped his deposition, the committee moved to hold him in contempt before the full House of Representatives voted to refer him to the justice department for criminal prosecution.
Navarro became the second person indicted for his subpoena defiance after former Trump strategist Steve Bannon also ignored his January 6 committee subpoena. Bannon was convicted last year and sentenced to four months in federal prison and $6,500 in fines, but remains free pending appeal.
