United States v. Navarro

• Docket Number: Case No. 22-cr-200 (APM)
• Decision Date: 19 January 2023
• Citation: United States v. Navarro, 651 F.Supp.3d 212 (D. D.C. 2023)
• Parties: UNITED STATES of America v. Peter NAVARRO, Defendant.
• Court: U.S. District Court — District of Columbia

651 F.Supp.3d 212

UNITED STATES of America v.Peter NAVARRO, Defendant.

Case No. 22-cr-200 (APM)

United States District Court, District of Columbia

Signed January 19, 2023

Amanda Rose Vaughn, Molly Gulland Gaston, Elizabeth Ann Aloi, John Crabb, Jr., Raymond N. Hulser, Assistant U.S. Attorneys, United States Attorney's Office, Washington, DC, for United States of America.

John S. Irving, IV, Earth & Water Law LLC, Washington, DC, Stanley Edmund Woodward, Jr., Brand Woodward Law, Washington, DC, John P. Rowley, III, Jprowley Law PLLC, Fairfax Station, DC, Stanley McKennett Brand, Brand Woodward Law, Rockville, MD, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

DefendantPeter K. Navarro stands accused of two counts of Contempt of Congress in violation of 2 U.S.C. § 192.The charges stem from his alleged refusal to produce documents and to appear for testimony in response to a subpoena issued by the now-defunct U.S. House of Representative's Select Committee to Investigate the January 6th Attack on the U.S. Capitol ("Select Committee").Defendant moves to dismiss the charges against him.Additionally, the government moves to preclude Defendant from raising certain defenses and introducing certain exhibits at trial.

For the reasons that follow, Defendant's motion to dismiss is denied and the government's motion in limine is granted in part.

I.

Defendant served as a senior advisor to President Donald J. Trump during all four years of his term of office.Def.'s Mot. to Dismiss the Indictment, ECFNo. 35-2[hereinafter Def.'s Mot.], at 1.He served in various capacities: Deputy Assistant, and later Assistant, to the President; Director of Trade and Manufacturing Policy; Director of the White House National Trade Council; and Defense Production Act policy coordinator during the COVID-19 pandemic.Id.

On February 9, 2022, the Select Committee served Defendant with a subpoena for records and testimony.Indictment, ECF No. 1[hereinafter Indictment], ¶ 7.The subpoena required Defendant to produce documents to the Select Committee on February 23, 2022, and to appear for a deposition on March 2, 2022.Id.¶ 9.Defendant did not produce any records to the Select Committee on or before the return date.Id.¶ 15.The next day, February 24, 2022, the Select Committee contacted Defendant by email to remind him of the missed deadline for producing records and of his upcoming deposition.Id.¶ 16.Three days later, on February 27, 2022, Defendant responded by stating in part: "President Trump has invoked Executive Privilege in this matter....Accordingly, my hands are tied."Id.¶ 17.The Committee wrote back the same day, rejecting Defendant's "stated reason for noncompliance with the subpoena and directing [him] to appear for his deposition as required."Id.¶ 18.

The next day, Defendant again said that he would not appear on the grounds of executive privilege.Id.¶ 19.He wrote the "privilege is not mine to waive" and that it would be "incumbent on the Committee to directly negotiate with President Trump and his attorneys regarding any and all things related to this matter."Id.Later that same day, Defendant received a letter from the White House Counsel's Office, advising him that President Joseph R. Biden had "determined that an assertion of executive privilege is not in the national interest, and therefore is not justified, with respect to particular subjects within the purview of the Select Committee."United States' Opp'n to Def.'s Mot., ECF No. 44 [hereinafter U.S. Opp'n], Ex. 5, ECFNo. 44-5, at 2.On March 1, 2022, the Select Committee"again rejected [Defendant's] stated reason for noncompliance with the subpoena and informed [him] again that he could assert any objections he may have on the record, on a question-by-question basis."Indictment¶ 20.Defendant did not appear for his scheduled deposition on March 2, 2022.Id.¶ 21.

On June 2, 2022, a grand jury returned an indictment against Defendant, charging him with two counts of Contempt of Congress in violation of 2 U.S.C. § 192. Id.¶ 22-25.Count One concerns his refusal to produce documents and Count Two relates to his failure to appear for testimony.

II.

Defendant moves to dismiss the indictment.SeeFED. R. CRIM. P. 12.He first contends that "[a]prosecution for Contempt of Congress following a legitimate assertion of Executive Privilege precluding [Defendant's] appearance before the Select Committee ... necessarily violates the doctrine of Separation of Powers and is unconstitutional."Def.'s Mot.at 11-12.That argument rests primarily on a series of opinions from the Department of Justice's Office of Legal Counsel("OLC"), which he says stand for the proposition that senior counselors to the President are absolutely immune from compelled congressional process and therefore cannot be prosecuted for noncompliance.Seeid. at 12, 14-17.It matters not, Defendant continues, that he was not a senior advisor to a sitting President at the time he received the subpoena.Seeid. at 12.A former President has the right to assert executive privilege, which cannot be unilaterally undone by the sitting President.Seeid. at 13.President Biden's determination not to assert executive privilege therefore does not defeat his claim of immunity.

The court need not wade into these judicially uncharted constitutional waters because Defendant's testimonial immunity defense rests on an unsupported factual premise: that President Trump invoked executive privilege with regard to the Select Committee's subpoena.Defendant has failed to come forward with any evidence to support the claimed assertion of privilege.And, because the claimed assertion of executive privilege is unproven, Defendant cannot avoid prosecution for contempt.¹

A.

The court has found no case that speaks to the manner in which a President must invoke executive privilege in response to a congressional subpoena to a former aide.In other settings, however, the D.C. Circuit consistently has referred to a "formal claim of privilege."In Nixon v. Sirica, for instance, the court disagreed with President Nixon's assertion that "whenever, in response to a grand jury subpoena, [a President] interposes a formal claim of privilege, that claim without more disables the courts from inquiring by any means into whether the privilege is applicable to the subpoenaed evidence."487 F.2d 700, 713(D.C. Cir.1973).In Dellums v. Powell, a civil case in which the plaintiffs sought certain White House recordings, the D.C. Circuit again rejected President Nixon's "contention that a formal claim of privilege on the generalized interest of presidential confidentiality, without more, works as an absolute bar to discovery of presidential conversations in civil litigation, regardless of the relevancy or necessity of the information sought."561 F.2d 242, 245-46(D.C. Cir.1977).And, in a case in which a plaintiff sought access to a government report, the D.C. Circuit said that for "the Government""[t]o interpose an objection to disclosure based on Executive privilege '[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.'"McClelland v. Andrus,606 F.2d 1278, 1290 n.59(D.C. Cir.1979)(quotingUnited States v. Reynolds,345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727(1953)).²

As the party asserting immunity from congressional process, the court thinks it is proper to place the initial evidentiary burden on Defendant to come forth with some evidence to show that President Trump made a "formal claim of privilege" after "personal consideration" with respect to the Select Committee subpoena.Cf.Trump v. Thompson,20 F.4th 10, 40(D.C. Cir.2021)(placing the burden on the former President to overcome the sitting President's decision not to assert executive privilege with respect to records demanded by the Select Committee);In re Sealed Case,121 F.3d 729, 752(D.C. Cir.1997)(holding that the government bears the burden of proving executive privilege applies to communications involving "dual hat" presidential advisors).But Defendant comes forward with no such evidence.

The parties agree that President Trump never personally conveyed to the Select Committee that he had directed Defendant not to appear based on executive privilege.SeeDef.'s Mot.at 6-7;U.S. Opp'nat 2-3.Defendant instead claims that he and the President had a "conversation" in which the President privately instructed him to assert privilege, and he then invoked on the President's behalf before the Select Committee.SeeMot. to Dismiss and Mot. in Lim. Hr'g Tr., ECF No. 64 [hereinafter MTD/MIL Hr'g Tr.], at 19.But Defendant offers no proof to support that assertion—he has offered neither a sworn affidavit nor testimony from him or the former President.His contention rests only on his counsel's representations, which are not evidence.Seeid.Without actual proof, the court cannot find that there was a formal invocation of privilege by the former President.Cf.Reynolds,345 U.S. at 7, 73 S.Ct. 528(stating that "the privilege which protects military and state secrets""belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party");Dellums,561 F.2d at 248(stating, in dicta, "[a]nalytically, there is much to be said for the proposition that ... the presidential privilege must be claimed by the president or an official authorized to speak for the president");seeMTD/MIL Hr'g Tr.at 18-20(defense counsel conceding that "[i]t is entirely ineffective for a former senior advisor to invoke privilege without an instruction to do it").

But even if the court were to accept that there was some "conversation" between Defendant and President Trump about executive privilege, that alone would not be enough to sustain Defendant's burden.The court has not been...