(Photo by Drew Angerer/Getty Images)

This afternoon, Trump’s econ crank Peter Navarro and his lawyers appeared before a skeptical US District Judge Amit Mehta to argue for dismissal of the contempt of congress case against him after he told the January 6 Select Committee to get bent and refused to show up and testify.

Navarro and his buddy Steve Bannon weren’t coy about their plot to disrupt the certification of President Biden’s electoral certification on January 6, 2021. They dubbed their plan the Green Bay Sweep, blabbed about it incessantly on Bannon’s show, and Navarro even wrote a book about it. Nevertheless, when the committee came knocking, both of them refused to engage at all, claiming executive privilege.

Bannon’s trial took place before Judge Carl Nichols, who refused to permit the defendant’s various public charge and estoppel defenses based on memoranda from the Office of Legal Counsel purportedly inferring categorical immunity on former presidential advisors from congressional subpoena. Bannon was convicted on both charges in July, but that’s not stopping his pal Pete from running the same play.

Bannon’s claim to executive privilege was especially tenuous, since he was fired from the White House in 2017, unlike Navarro who stuck it out to the bitter end in 2021. But Bannon had something Navarro didn’t have, which was a letter from Donald Trump’s lawyer Justin Clark instructing him to “invoke any privilege you may have” — not that it did him much good.

Navarro has no such written communication. But he insists that the privilege was duly invoked — perhaps telepathically, in the same manner in which Donald Trump declassified documents! — and thus he had no responsibility to engage with the committee at all.

According to his lawyer Stanley Woodward, Navarro does have evidence though. It is “testimonial,” as in known to him and Trump.

Will the defense be putting the either of those parties on the stand? It will not, choosing “not to involve” the former president, and demurring that “we’re not prepared to put our client on the stand.” And more power to them, although it is rather a lot to ask the court to just have faith that such evidence may exist and dismiss the case based on it.

“You aren’t even telling me that he whispered in his ear. You’ve given me nothing,” Judge Mehta noted testily.

“We’re saying Trump invoked,” Woodward responded.

“Based on that, you want me to dismiss the indictment?” the judge said incredulously?

In fact, they did. Or, based on the suggestion of a whisper, plus testimony from Trump’s lawyers to the grand jury that they didn’t invoke privilege in writing for Navarro, as they did for Mark Meadows, Dan Scavino, and Bannon because “Dr. Navarro has his own channels of communication with the former president and knows what his instructions are.”

This is nonsensical on its face. Meadows remains close with the former president, and Scavino appears to travel with him from rally to rally. Surely they have the same access to Trump’s whispers as Navarro. But Bannon, Scavino, and Meadows had something Navarro did not have until recently, which was competent counsel who sought out the former president’s representative to secure a written invocation.

Woodward had an answer for that one, though, and it was that the committee was obliged to go negotiate with Trump to determine the scope of privilege, because Navarro couldn’t possibly come in and discuss things he’d already written about in his book without permission from the former president.

“They made no effort to negotiate the scope of privilege with the privilege holder,” he complained to a skeptical judge, adding that “This whole prosecution could have been avoided with a phone call.”

The court was similarly dubious that Trump might have made a standing invocation order by writing a general letter expressing his wish for Trump administration officials to refuse to cooperate with the coronavirus committee’s investigation.

Woodward also steered himself into rocky shoals when asked if an advisor might invoke privilege absent instruction from the president.

“The privilege belongs to the office,” he responded, only to have Judge Mehta shoot back that “The office holder has not invoked it,” a reference to the waiver of privilege by President Biden, the incumbent.

And that wasn’t the only exchange that got testy.

“I don’t think that’s good law” Woodward said regarding a precedential case invoked by prosecutors.

“DC Circuit, Supreme Court, that’s not good law?” the court replied.

In a final Hail Mary pass, another member of Navarro’s legal team tried to claim that the prosecution itself violated due process, since Navarro had studied prior OLC memos and had the subjective belief that he had a magical cloak of immunity to congressional process.

The court listened more or less patiently to all the arguments, and did not rule on the motion to dismiss from the bench. It did, however, turn immediately to the issue of scheduling the trial, with an eye to starting on November 16. Which is not exactly auspicious for the defense’s cause.

US v. Navarro [Docket via Court Listener]

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

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