In the Peter Navarro case, executive privilege is on trial

Does Congress have the power to compel presidents and their advisors to disregard executive privilege and force testimony before its committees? That’s just one of the substantial constitutional questions raised in United States v. Peter K. Navarro; the Supreme Court gets its first look at the case on April 26.

U.S. v. Navarro has the potential to be a landmark case of “first impressions” involving unsettled questions ideal for Supreme Court review. Peter Navarro is the first White House advisor in history to be convicted of and jailed for contempt of Congress. If the high court does not “settle good law” in this case and Navarro’s conviction is upheld, the doctrine of executive privilege will be irreparably harmed and an important pillar of our system of government’s separation of powers will crumble.

President George Washington established the doctrine of executive privilege with an admonition in his historic Jay Treaty communication to Congress on March 30, 1796. He wrote, “as it is essential to the due administration of the Government, that the boundaries, fixed by the Constitution between the different departments, should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request.”

Navarro received a subpoena from the House Select Committee to Investigate the January 6th Attack on Feb. 9, 2022. Former President Donald Trump instructed him to invoke executive privilege. As Navarro has repeatedly stated, it was not his privilege to waive. He had a duty to the Constitution and his oath of office to refuse to comply with the subpoena, a duty which he would honorably fulfill — and was sent to prison for doing so. The unprecedented treatment of Navarro is a stunning double standard in comparison to former Obama administration officials Eric Holder and Lois Lerner, who were also held in contempt of Congress but were never prosecuted by the Justice Department.

The question now before the Supreme Court is whether Navarro should be released from prison pending the broader appeal of his conviction. More specifically, the justices must determine whether his appeal raises “substantial issues” likely to lead to a retrial or case dismissal. Of course it does.

Besides the core issue of whether Congress had the legal authority to subpoena him in the first place, other substantial questions related to the privilege include: (a) whether the sitting president can strip a former president of the privilege; (b) what it takes to invoke the privilege on behalf of a former president; and (c) whether a defendant who in good faith mistakenly believes the privilege applies can present evidence of that good-faith belief to the jury to negate the willfulness element of the offense.

An Obama-appointed judge ruled against Navarro on each of these issues. In making his counterfactual rulings, the judge acknowledged he was in “uncharted waters” and that his ruling would seriously “hamstring” Navarro’s defense. It would be funny, if a man’s freedom weren’t at stake.

The question of whether a sitting president can strip a former president and his advisors of the protections of executive privilege — something President Joe Biden has tried to do with both Trump and Navarro — has never been squarely addressed by the Supreme Court. But at least one justice has indicated that a sitting president has no such power. Two years ago, when the court declined to answer the question on an expedited basis in Trump v. Thompson, Justice Brett Kavanaugh noted, “A former president must be able to successfully invoke the Presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim.” Navarro’s appeal of his conviction puts this question squarely before the U.S. Court of Appeals for the District of Columbia, and it cries out for good settled law either from that court or, failing that, the Supreme Court.

Next is the question of how the privilege is to be invoked by a former president. Is it “presumptive,” as many legal scholars believe? If not, what constitutes a “formal” or “proper” invocation of the privilege? This too is a substantial issue that has never been answered by the Supreme Court.

Finally, there is the question of whether a defendant charged with contempt of Congress can present to the jury his or her good-faith belief that executive privilege applies, even if that belief is mistaken, in order to negate the willfulness element of the offense. In ruling against Navarro on this point, the trial judge relied on a 63-year-old appellate court ruling, which in turn relied on a 1929 Supreme Court decision that was repudiated by the Supreme Court decades ago. 

If that appellate court ruling is overturned, Navarro will either get a retrial or have his case dismissed. While that outcome may not be a forgone conclusion, the likelihood of a favorable outcome would seem to be at least a “close question.” Indeed, that’s precisely what another judge ruled in a similar case involving Steve Bannon, who, like Navarro, was convicted of contempt of Congress for his refusal to testify before the Jan. 6 committee. While Navarro’s judge sent him straight to prison, Bannon’s judge allowed him to remain free pending the outcome of his appeal because he had serious concerns over the continued validity of that dubious precedent.

Given the substantial questions raised by his appeal, it’s time now for the Supreme Court to free Peter Navarro, who has spent a month in prison simply for doing his duty to the Constitution and honoring his oath of office. Far more importantly — and Navarro would agree — it’s time for the Supreme Court to begin settling “good law” that will preserve the doctrine of executive privilege and ensure the separation of powers.

David N. Bossie is president of Citizens United and served as deputy campaign manager for Donald J. Trump for President in 2016.