“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,” Mehta wrote in the 39-page ruling.
It’s a significant decision in an area with little precedent: what current and former presidents must do to assert executive privilege. Mehta acknowledged that there’s not much to guide how courts should determine when a proper assertion has been made. But he said limited court rulings on the subject suggest there must be at least some formal evidence it occurred.
Mehta noted that two other Trump aides whom the House sought to hold in contempt — Mark Meadows and Dan Scavino — produced letters from Trump ordering them to assert executive privilege on his behalf. The Justice Department declined to prosecute the men, and Mehta indicated that the absence of a similar letter from Trump to Navarro led to a reasonable conclusion that Trump had not asserted executive privilege over his testimony.
Mehta’s ruling means that Navarro’s trial on two charges of contempt of Congress is likely to commence later this month. He faces a maximum sentence of a year in prison on each charge — one for refusing to testify and the other for refusing to provide documents — if convicted.
The select committee had hoped to interview Navarro about his coordination with former Trump adviser Bannon and efforts to strategize with members of Congress seeking to challenge the 2020 election results on Jan. 6, 2021, during the counting of Electoral College ballots. The committee recommended that Navarro be held in contempt in April 2022, and the full House quickly followed suit. The Justice Department charged him in June.
Mehta’s ruling also gutted a series of defenses Navarro had hoped to raise at his trial, including that he had a “good-faith belief” that he was immune from the committee’s subpoena. Mehta also agreed to prohibit Navarro from arguing that the select committee’s subpoena was invalid because the panel didn’t have a full complement of 13 members or a ranking Republican member appointed by GOP Leader Kevin McCarthy.
Although he declined to say whether the committee was operating improperly, Mehta noted that Supreme Court precedent required Navarro to first raise his rules complaint with Congress itself. Because he didn’t do that, he effectively waived that argument. Navarro had argued that raising his complaints to Congress would have been “futile” because the House would have simply rejected them. But Mehta said the rules were clear.
“Neither the Supreme Court nor the D.C. Circuit has recognized a futility exception. … And, given the rationale of the rule, it is doubtful that higher courts would recognize one,” Mehta wrote.
The ruling essentially puts Navarro on a track similar to his close ally Bannon, who was tried and convicted of contempt of Congress in July. Bannon, like Navarro, had hoped to argue that he believed he was immune from testifying and that longstanding Justice Department precedents precluded Congress from subpoenaing advisers to former presidents. But in that case, U.S. District Court Judge Carl Nichols relied on a decades-old appeals court ruling — United States v. Licavoli — to reject Bannon’s proposed defenses, ruling that prosecutors simply needed to show that Bannon deliberately refused to appear before Congress.
Mehta cited the case, as well, in tossing most of Navarro’s defenses.
“Defendant apparently believes the law applies differently to him,” he wrote of Navarro. “Because he is a former aide to the President of the United States, he contends, a more stringent state-of-mind standard applies, meaning that the government must be held to a higher burden of proof to convict him as opposed to the average person.”