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Everyone Knows Steve Bannon Got Convicted Of The Exact Same Crime. But What Peter Navarro's Defense Assumes Is ... Maybe He Didn't?

So, not really a case of first impression after all.

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Former Trump Advisor Peter Navarro Indicted For Contempt Of Congress

(Photo by Drew Angerer/Getty Images)

When Donald Trump’s anti-China econ loon finally hired a lawyer to defend him against charges of contempt of Congress for his refusal to testify to the January 6 Select Committee, we at ATL shed a wee, tiny tear. No more batcrap pro se motions, we assumed, just dull, competent lawyering.

Friends, we need not have worried.

Gone are the days when Navarro would fire off peevish emails to the courtroom deputy complaining about US District Judge’s conduct, of course. But Navarro’s recently hired counsel, white-collar defense lawyer John Rowley and environmental lawyer John Irving, are filling the void nicely with a bevy of batshit motions premised on the theory that this is a “case of first impressions.”

It is a test of the Separation of Powers between the Executive Branch and the Legislative Branch, where the criminal prosecution of a senior aide to the President should be barred as a matter of law or, at a minimum, be permitted to introduce evidence of his reliance on the Department’s own legal positions in his defense at trial.

When subpoenaed, Navarro claimed “absolute immunity” from legislative process as executive official, and further asserted that former President Trump had evoked executive privilege to shield him from even having to appear before the Committee. At the same time he was refusing to discuss it under oath, Navarro published a book about his “Green Bay Sweep” plan to thwart President Biden’s electoral certification and substitute fake electors for the real ones chosen by voters — the very topic he was being asked to testify about, and one which had nothing whatsoever to do with executive branch communications.

Navarro is now seeking to discover internal Justice Department and Congressional deliberations, while asserting a public authority defense, and accusing the government of entrapment by estoppel because of Office of Legal Counsel memoranda which protect government officials from prosecution when they refuse to testify.

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Sound familiar? It should, because those are the exact same defenses put forth by Navarro’s fellow “Green Bay Sweep” plotter Steve Bannon, who was convicted of the same charges a month ago. While the podcaster was fired from the White House in 2017, he also claimed that, as a (very) former White House official, executive privilege prevented him from even showing up before the Committee to refuse to answer questions. He made the same arguments that the Committee was illegitimately constituted, that the DOJ was selective prosecuting him, and that he didn’t “willfully” defy the subpoena because he believed that someone, somewhere had given him permission not to comply.

And every single one of those arguments was rejected out of hand by US District Judge Carl J. Nichols, who was appointed by Donald Trump. And yet, Navarro’s lawyers appear to think that if they just pretend that Steve Bannon doesn’t exist, maybe US District Judge Amit Mehta, an Obama appointee, won’t notice.

This case also presents novel issues about a former President’s authority to invoke executive privilege, whether the absolute immunity from congressional inquiry long recognized by the OLC continues to apply to senior advisers after they leave the White House, and the extent to which a President may waive those protections asserted by a former President. The Government appears to have decided those questions in a manner that is unfavorable to former President Trump and to Dr. Navarro; but those conclusions are also inconsistent with the Department’s longstanding policies and legal rationale and changed without reasonable notice to Dr. Navarro.

In addition, Navarro’s lawyers have seized upon a recently released letter from the National Archives to Trump’s lawyers informing them that President Biden refused to sustain Trump’s claim of executive privilege over documents he improperly retained when he left office. Trump sought to assert executive privilege as a means of blocking the Justice Department from instigating him for mishandling classified material, but Biden said he would defer to the Justice Department.

From this, Navarro infers a great conspiracy between the White House and the DOJ to deprive him of immunity and punish one of the leading lights of the prior administration.

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The same NARA prompted DOJ’s Civil Division to issue a litigation demand letter to Dr. Navarro the day before his indictment seeking documents sought by the Coronavirus Subcommittee that had gone unaddressed for approximately six months. It is not unreasonable to think that politics played a role in any of this and in the OLC’s decision to change course from decades of memoranda and the legal basis behind them. Dr. Navarro should be permitted to at least explore whether that is so.

This line of reasoning may work at Newsmax, but seems unlikely to prevail with Judge Mehta. And your correspondent has tried to pretend the putrefying podcaster does not exist, but to no avail!

Well … good luck to ya, fella.

US v. Navarro [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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