The Ruling in Peter Navarro's Case & A Lesson About Justice

And a note about Rudy Giuliani

Of all the goings-on I flagged in this week’s “The Week Ahead,” the Peter Navarro case seemed like the one least likely to attract attention. The other legal proceedings we referenced have or are in the process of playing out, with some interesting details. We now have a March 2024 trial date for Trump. To the surprise of many, Mark Meadows took the witness stand to testify in support of his removal petition in Georgia. The Proud Boys’ sentencings were canceled for unspecified medical reasons and have been rescheduled. A hearing was held this morning in the District of Columbia on Navarro’s efforts to head off his trial on charges of contempt of Congress—he failed to show up to testify or provide documents to the House January 6 committee pursuant to their subpoena. Navarro is likely unhappy about the result. He tried to argue that Trump didn’t want him to testify, so he was covered by executive privilege. That argument didn’t fly.

District Judge Amit Mehta reviewed the precedent for invoking executive privilege, concluding that Navarro would have to establish Trump had explicitly asserted privilege to check Navarro's potential testimony, in order to rule in his favor. The evidence, it turned out, didn’t support that conclusion. In essence, Navarro has wasted the court’s time with a specious argument about executive privilege—that’s my assessment; the Judge was far more polite.

In order to successfully claim executive privilege, the person asserting it must establish three elements:

1. The decision to invoke privilege was made by president or their authorized designee.

2. The president engaged in personal consideration of the matter.

3. The president made a decision to assert privilege in connection with the specific subpoena in issue. Privilege cannot be validly asserted by "mere acquiescence."

Judge Mehta concluded that there was no evidence of specific communications between Trump and Navarro about the January 6 committee subpoena. Navarro wasn’t “accurate” when he claimed Trump invoked the privilege, or, as I might say more colloquially, he lied. Navarro claimed there was a February call where Trump “clearly” invoked the privilege, but offered no evidence in support of that claim. Not so much as a staffer or notes. Judge Mehta was also unimpressed by Navarro’s claim that Trump’s assertion of privilege to block Navarro’s testimony to the House’s Covid subcommittee was sufficient to enforce the privilege in this case; involving another committee and an entirely different subject matter. It’s obviously not the specific consideration the law requires, and Judge Mehta dismissed the notion it had any consequence here. (In fact, one could argue that the Covid matter shows Trump knew how to invoke privilege when he intended to and since he didn’t do it here, there is not privilege at play.)

But the kicker is that even if Trump had formally invoked executive privilege, Navarro was still required to show up pursuant to the subpoena and sit for questioning. His obligation under the law would be to consider each question individually, asserting the privilege where it applied and answering the questions where it didn’t. So even if Navarro had established the privilege, he would still have been in contempt of Congress.

Navarro’s case stands for a fundamental principle in our legal system—a pretty basic one. A person who receives a lawful subpoena can contest it in advance. But unless and until a judge says the person doesn’t have to show up pursuant to the subpoena, they have to comply with it. Navarro didn’t. He more or less invited DOJ to prosecute him; in fact, he essentially demanded that they indict him. That’s because obtaining information from people is essential to Congress’s oversight function, like it is to courts conducting civil trials and prosecutors investigating criminal cases. They have to obtain firsthand testimony so that can get to the truth. If people were free to flout subpoenas, the entire system would begin to break down.

This isn’t a case about politics. It’s not a witch hunt. The prosecution, and the Judge’s decision that it can move forward to trial, stand for the reassuring proposition that the rule of law continues to hold up in this country.

I happened to be rereading parts of my former US attorney colleague and podcast cohost Preet Bharara’s book, Doing Justice, over the weekend. Preet’s words, written in 2019, seem made for this moment as well. Not everything is about politics, and justice most certainly shouldn’t be. Preet’s observation that we live in an era where people “demonize…rather than engage” their opponents, content “to bludgeon critics rather than win them over” is apt. So is his conclusion, that “our adversaries are not our enemies; the law is not a political weapon, objective truths do exist; fair process is essential in civilized society.”

Peter Navarro was indicted by a Justice Department that weighed every recommendation for a contempt prosecution sent to it by the House Committee, accepting some, while declining to prosecute in other cases— Mark Meadows’ for one, who had partially complied with his subpoena. Navarro received fair process and there was no evidence that his conduct was covered by executive privilege. Now, he will be entitled to a trial before a jury of his peers. While it’s likely Navarro and others will portray his prosecution as a witch hunt, or at least witch hunt-adjacent, there is an objective truth here, and it’s that there was sufficient evidence to indict, and now our system of justice demands that a jury make the final decision about guilt or not.

That’s how our system works. Litigants must proceed according to the rules. When they don’t, there are consequences. Rudy Giuliani found that out today, at the hands of Washington D.C. District Judge Beryl Howell, who entered a default judgement against him for defamation and other claims in civil lawsuit brought by Georgia election workers Shaye Moss and Ruby Freeman.

Default judgments are often entered in a plaintiff’s favor in cases where the defendant fails to respond to a lawsuit or doesn’t appear in court when summoned. Here, it’s a sanction imposed by the court for Giuliani’s failure to provide discovery he was obligated to turn over to Freeman and Moss. Judge Howell wrote, "Donning a cloak of victimization may play well on a public stage to certain audiences, but in a court of law this performance has served only to subvert the normal process of discovery." Giuliani not only suffers a loss, with only the amount of damages he must pay left to be determined, he will also be responsible for paying the plaintiffs’ attorneys’ fees. The decision is entirely appropriate.

Judge Howell has apparently entered the find out stage of the proceedings—as the former Chief Judge in the district, she’s handled a lot of matters involving Trump-world figures who thought the rule of law did not apply to them. “Yet, just as taking shortcuts to win an election carries risks—even potential criminal liability,” she wrote, “bypassing the discovery process carries serious sanctions, no matter what reservations a noncompliant party may try artificially to preserve for appeal.” Read the Judge’s full ruling here.

Rudy Giuliani's finances take another hit. No word on whether Trump’s $100,000 a plate fundraiser for his Georgia co-defendant will actually take place in early September as announced and whether it will help to keep Giuliani in the fold. Former Republican strategist Rick Wilson was prophetic when he titled his 2018 book “Everything Trump Touches Dies.” Little did anyone know that would apply to Trump’s advisors and attorneys, the people who usually move on to great acclaim and financial reward after serving a president, in equal measure. Today underscored Wilson’s observation. It’s up to us to make sure it doesn’t happen to democracy.

We’re in this together,

Joyce