Former Trump adviser Peter Navarro wants to be able to tell a jury the former president directed him to defy a congressional subpoena, but on Wednesday a federal judge in Washington wasn’t so sure.
Throughout the nearly two-hour hearing, Judge Amit P. Mehta questioned prosecutors and Navarro’s lawyers about how to handle the complications presented by the prosecution of a former presidential aide on two contempt of Congress charges.
Mehta didn’t rule immediately on that issue about the jury, one of the largest outstanding questions ahead of a trial set for Sept. 5. The charges stem from Navarro’s refusal to cooperate with the House select panel that investigated the Jan. 6, 2021, attack on the Capitol.
Both sides agreed Wednesday that presidential aides typically are immune from congressional subpoenas that cover their official duties and therefore can’t be prosecuted for defying such a subpoena. Navarro has claimed he shouldn’t be prosecuted for ignoring the subpoena, but he hasn’t yet presented evidence that Trump told him to do so.
Mehta, a judge for the U.S. District Court for the District of Columbia, said the issue will likely come out one of two ways: an evidentiary hearing ahead of trial where Mehta rules on any evidence Navarro presents about Trump’s directions about how to respond to the subpoena, or letting Navarro make those same arguments at trial.
Mehta already ruled that Navarro couldn’t dismiss the case entirely over his claims of executive privilege.
“This is about whether the conduct involved constitutes a crime, and that is a question juries determine all the time,” Mehta said.
Justice Department attorney John Crabb Jr. argued that Mehta, and not the jury, should rule that the immunity didn’t apply to Navarro. “That’s a legal matter, that’s not for the jury to decide,” Crabb said.
Crabb also argued that the select panel’s subpoena for testimony and documents from Navarro about the effort to overturn the 2020 presidential election also covered issues outside his official duties as a trade adviser.
As prosecutions for contempt of Congress are so rare, Mehta and the attorneys leaned on hypotheticals and references to recent civil court fights over enforcement of congressional subpoenas.
Stanley Woodward, Navarro’s attorney, argued that Navarro is not an attorney and should not be expected to navigate the complicated questions about when executive privilege and testimonial immunity apply. Woodward said that, before a prosecution, Congress or the administration should have to seek a determination that a subpoena would apply to a former aide.
“Dr. Navarro should not have to risk prison just because he believed, perhaps wrongly, that immunity applied,” Woodward said.
Woodward also argued that Congress should not be able to use subpoenas and the threat of prosecution to target an aide’s private life and “harass a president through his aides.”
Mehta pushed back on that argument, saying that “there is no harassment defense because they are a White House official.”
Separately on Wednesday, Mehta ruled against Navarro’s attempt to dismiss the case because of an issue under the Speedy Trial Act. Mehta found that the law’s 70-day timeline for a criminal trial had not run out because of the ongoing briefing over the executive privilege issues.
Unless Mehta rules on the privilege issue in the interim, Navarro will next head to court on Aug. 30 for a hearing to set details of the trial.
The Justice Department indicted Navarro last year on two counts of contempt of Congress. If convicted, he faces a minimum of 30 days in prison on each count, up to a maximum of one year.
Navarro was one of two witnesses who defied the House select committee whom the DOJ decided to prosecute. The other was Trump ally Steve Bannon, who was convicted on two counts of contempt of Congress last year.
Bannon appealed his conviction to the U.S. Court of Appeals for the District of Columbia Circuit in a case that is still pending.
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