Government

DC Circuit Will Not Be Keeping Peter Navarro Out Of The Clink

How is Peter Navarro going to jail? Let us count the ways! 

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Former Trump Advisor Peter Navarro Indicted For Contempt Of Congress

(Photo by Drew Angerer/Getty Images)

Donald Trump’s White House econ crank played a very stupid game with the January 6 Select Committee, and won the stupidest of prizes.

After blowing off a congressional subpoena via pissy email purporting to lawsplain executive privilege, Navarro was shocked to find himself on the pointy end of a contempt of Congress charge. And even after his coup compadre Steve Bannon got convicted of the same crime, Navarro seemed to believe that he’d be able to skate.

In fact, he was not. Judge Amit Mehta ruled that Trump had not invoked executive privilege, and that even if he had, Navarro would still have had to show up and assert it in response to specific questions. The jury took just a couple of hours to convict in September, and in February the court sentenced Navarro to four months.

Since then, he’s been desperately trying to keep himself out of jail pending appeal.

Judge Mehta scoffed at the theory that Navarro’s claim presented new and substantial issues of law which required higher courts to weigh in.

“Whether a President’s invocation is required to assert executive privilege is not a substantial question,” he wrote. “Any other answer would mean that the President has unilateral authority to determine when and how the privilege applies. That is not the law.”

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And this morning Navarro got the brushoff from the DC Circuit, too.

“Appellant has not shown that his appeal presents substantial questions of law or fact likely to result in reversal, a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence of imprisonment that is less than the amount of time already served plus the expected duration of the appeal process,” Judges Patricia Millett, Cornelia Pillard, and Robert Wilkins wrote.

In the two-page order, the panel managed to reject Navarro’s claims on six separate grounds.

  1. The appellant failed to allege substantial questions of fact with regard to Judge Mehta’s conclusion that Trump did not invoke privilege, and thus the issue is now waived;
  2. The claim that executive privilege can be invoked “presumptively” presents no substantial question, “because the argument presupposes that privilege has actually been invoked in this case in some manner by the President. That did not happen here.”;
  3. The trial judge concluded that any actual privilege invocation would have been overcome by necessity, and having failed to challenge that on appeal, that issue is also waived;
  4. There is binding precedent that says contempt of Congress does not require proof of willfulness, and so Navarro’s belief that he had a right to tell Congress to get bent is of no moment;
  5. Executive privilege doesn’t mean you get to blow off subpoenas — you still have to show up and refuse to answer questions; and
  6. No one knows what appellant means when he says “defendant’s state of mind gives rise to a constitutional contravention of the separation of powers doctrine,” but it sure as hell isn’t a substantial question of law.

But other than that …

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Navarro is due to surrender in Miami on March 19, unless SCOTUS decides to do him a solid. Lotsa luck, fella!

US v. Navarro [DC Circuit Docket via Court Listener]
US v. Navarro [Trial Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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