A federal judge on Tuesday set a Sept. 5 trial date for former Trump White House advisor Peter Navarro on criminal charges stemming from his refusal to cooperate with a subpoena from the House select panel that investigated the Jan. 6, 2021, attack on the Capitol.
The contempt of Congress case has been delayed over the past few months as attorneys argued over how to handle Navarro’s claims that former President Donald Trump told him to claim executive privilege over the subpoena.
Judge Amit P. Mehta of the U.S. District Court for the District of Columbia already ruled that Navarro could not dismiss the charges over his claim of executive privilege. But he has yet to decide what to do at trial if Navarro testified to the jury that Trump instructed him to invoke privilege.
Navarro was originally meant to face trial earlier this year. The case, a rare prosecution for defying a congressional subpoena, may test the limits of the legislative branch’s subpoena power.
In a court filing, the Justice Department argued Navarro should not be allowed to bring up the issue at all in his testimony. Prosecutors said Navarro had presented no evidence that Trump instructed him to invoke privilege and he should not be allowed to bring that up at trial.
The DOJ also wrote that even if Trump did so, the former president could not assert executive privilege when current President Joe Biden had not.
“If a former President’s claim of privilege or immunity had the effect of enabling a witness to refuse to testify without the possibility of contempt, that would ‘throw a wrench into the ongoing working relationship and accommodations between the Political Branches,’” the DOJ brief said.
Navarro’s attorney argued in a brief that past presidents can assert executive privilege and Navarro should still have the chance to bring up the privilege issue at trial.
In addition to the trial date, Mehta set a June 21 hearing on the executive privilege claim and other legal issues and an August 30 pretrial hearing.
The Justice Department indicted Navarro last year. If convicted, he faces a minimum of 30 days in prison on each count, up to a maximum of one year.
Criminal prosecutions for contempt of Congress are rare and require a cooperative executive branch. Last Congress the Democratically controlled House voted to refer Navarro and four others for contempt of Congress because they refused to cooperate with the probe into the Jan. 6 attack.
The Biden administration indicted two: Navarro and Trump ally Steve Bannon. A federal jury found Bannon guilty on two counts of contempt following a trial last year, the first such conviction in decades.
Bannon appealed his case to the U.S. Court of Appeals for the District of Columbia Circuit, where it is currently pending.
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