Dr. Peter Navarro, a former White House adviser to President Donald Trump, is preparing for a potentially lengthy legal battle to not only overturn his conviction for contempt of Congress but to establish a clear precedent for how prosecutors must handle claims of executive privilege.
Mr. Navarro was convicted in September on two counts related to contempt of Congress for not providing records and testimony sought by the now-defunct House select committee that investigated the breach of the U.S. Capitol on Jan. 6, 2021. Mr. Navarro was sentenced last week to a four-month prison term and a fine of $9,500, but his sentence has been stayed pending an appeal.
Speaking with NTD’s “Capitol Report” on Tuesday, the former White House adviser said he expects his appeal will set up “one of the most important landmark constitutional cases in our history regarding the constitutional separation of powers” and the principle of executive privilege.
Mr. Navarro maintains that, throughout U.S. legal history, presidents have been able to assert executive privilege over their discussions with their advisers. During his trial, Mr. Navarro maintained that he believed President Trump had properly asserted his executive privilege over the documents and testimony sought by the Democrat-controlled Jan. 6 committee. However, President Joe Biden’s administration undermined those privilege claims and insisted a former president’s privilege claims could be waived by subsequent presidents.
“I’m obviously fighting now for my own life, facing a prison term for standing up for principle. But the bigger issue here, the bigger mission, is to take this case up the chain, [through the] appeals court. I believe it’ll eventually go to the Supreme Court and settle good law on constitutional separation of powers and executive privilege,” Mr. Navarro said. “The law as it exists right now either doesn’t exist, it’s in a vacuum, or it’s bad law. And part of the reason I got here where I am is that there’s some bad law at the lower level.”
Mr. Navarro said the Jan. 6 committee should have reached out to President Trump for the former president’s own take on the executive privilege dispute.
“I was more than happy to comply with that subpoena if they simply called the president and asked for a waiver of the privilege,” Mr. Navarro said. “And I think it tells the lie, in this whole case, that they never made one phone call, they never lifted a finger to call him to get the information they claimed they needed to have. Had they made that one phone call, we wouldn’t be sitting here.”
Ahead of his sentencing this month, prosecutors said Mr. Navarro’s appeals to President Trump’s executive privilege were part of a broader “bad-faith strategy of defiance and contempt” against the Jan. 6 committee’s requests.
Separation of Powers Could Be ‘Irreparably Harmed’: Navarro
Mr. Navarro warned that if his conviction is allowed to stand and the Supreme Court either rejects his appeals or sides with the lower courts, it would set a precedent for future precedents to target their predecessors for political reasons.
“If I am put in prison and my appeal is rejected, the constitutional separation of powers will be irreparably harmed, executive privilege will mean nothing, and it will become open season every time power changes hands on senior White House advisers to the President and the President himself,” he said. “If there is no executive privilege, then Congress can weaponize the subpoena power for partisan purposes, which they’ve clearly done in Donald Trump’s case.”
Constitutional law scholar Alan Dershowitz offered a similar argument in a July 2022 opinion for Newsweek, stating the ability of presidents to waive the privilege claims of their predecessors would disrupt the candid flow of advice between presidential advisers and the presidents they serve.
“Empowering a sitting Democratic president to revoke the executive privilege of a past Republican president would destroy the privilege for all presidents,” Mr. Dershowitz, an avowed Democrat, wrote. “It would deny future executives the right to obtain needed confidential advice from trusted members of the administration and others. That would be bad for our nation and bad for both Democratic and Republican presidents.”
Mr. Dershowitz further argued that, at the very least, the U.S. Department of Justice should have asked the federal courts to resolve questions about presidential immunity before they proceeded with indicting Mr. Navarro.
“One point should be beyond dispute: that before a member of a past administration, such as Peter Navarro, is indicted for refusing to violate a former president’s executive privilege, the courts should resolve the conflict and order him to testify,” Mr. Dershowitz wrote. “That is not the approach taken by the Biden Justice Department, which indicted Navarro without a judicial resolution or court order. That, in my view, is unconstitutional.”
As to the Supreme Court’s likeliness to uphold the privilege claims asserted in Mr. Navarro’s case, Mr. Dershowitz said past cases generally support presidential privilege claims, though the court’s sometimes carve out exceptions or describe balancing tests when privilege claims are asserted.
In their sentencing memo this month, prosecutors said the sentence imposed against Mr. Navarro “must vindicate the authority of Congress to investigate matters of national importance and demonstrate that attacks on Congress’s lawful authority as a co-equal branch of government will not be tolerated.”
Asked to evaluate his chances of success on appeal, Mr. Navarro replied, “We’ll see what happens.”
