UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
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v. ) Case No. 22-cr-200 (APM)
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PETER K. NAVARRO, )
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Defendant. )
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MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION FOR AN
EVIDENTIARY HEARING AND TO COMPEL MATERIAL DISCOVERY
I.
On January 24, 2023, Defendant Peter K. Navarro moved the court: (1) to reconsider its
Order denying Defendant’s motion to dismiss, (2) to hold “an evidentiary hearing on the question
of what evidence supports a finding that former President Trump invoked privilege and/or that
Dr. Navarro reasonably believed he had a legal duty to assert executive privilege,” and
(3) to “compel the Government to comply with its obligations to provide discovery that is material
to the preparation of Dr. Navarro’s defense.” Def.’s Mot. to Recons., for an Evidentiary Hr’g, and
to Compel Material for Disc., ECF No. 71 (redacted) [hereinafter Def.’s Mot.], at 1. At the pretrial
conference held on January 27, 2023, the court denied Defendant’s motion for reconsideration,
see Jan. 27, 2023 Hr’g Tr., ECF No. 76 [hereinafter Jan. Hr’g Tr.], at 4–13; Minute Order,
Feb. 2, 2023, but left open the remaining two motions pending further briefing from the parties.
Having considered the parties’ original and supplemental arguments, the court grants
Defendant’s request for an evidentiary hearing and grants his request for discovery in part. The
court has already set aside August 28, 2023, for an evidentiary hearing.
II.
The request for supplemental briefing arose in part from the question of whether Defendant
had the right to present evidence to the jury that former President Donald J. Trump instructed him
to assert executive privilege or testimonial immunity in response to the Select Committee’s
subpoena. See Jan. Hr’g Tr. at 49, 53–54, 60–62, 69. The court hypothesized that a proper
invocation of privilege or immunity could be viewed as a limit on Congress’s authority to issue a
subpoena for the testimony of a former aide to a former President concerning official acts.
See id. at 21–23. Such evidence, the court suggested, could negate an element of the offense—
namely, whether the Select Committee had the requisite “authority” to issue the subpoena in
question. See 2 U.S.C. § 192; cf. Gojack v. United States, 384 U.S. 702, 708 (1966) (“It can hardly
be disputed that a specific, properly authorized subject of inquiry is an essential element of the
offense under § 192.”); Shelton v. United States, 327 F.2d 601, 607 (D.C. Cir. 1963) (holding that
the defendant’s “rights were abridged when the subpoena was issued without Subcommittee
authorization”).
Upon further reflection, the court thinks that a fact dispute over an actual, proper invocation
is for the court, not the jury, to determine. Such an invocation by a former President would act as
a constitutional constraint on the scope of the contempt statute, not as a diminution of
congressional authority to issue compulsory process in the first instance. That has long been the
position of the Department of Justice. See Prosecution for Contempt of Cong. of an Exec. Branch
Official Who Has Asserted a Claim of Exec. Privilege, 8 Op. O.L.C. 101, 102 (1984)
(Gorsuch Memo) (“[W]e believe that the contempt of Congress statute was not intended to apply
and could not constitutionally be applied to an Executive Branch official who asserts the
President’s claim of executive privilege in this context.”); Whether the Dep’t of Just. May
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Prosecute White House Officials for Contempt of Cong., 32 Op. O.L.C. 68–69 (2008) (stating the
same with respect to an invocation of testimonial immunity). And the parties now agree that a
former senior aide to a former President enjoys only a qualified immunity against compelled
congressional testimony. See U.S.’ Br. on Def.’s Unsupported Claims of Exec. Privilege and
Testimonial Immunity, ECF No. 79 [hereafter Gov’t Suppl. Br.], at 10–11; June 21, 2023 Hr’g Tr.,
ECF No. 90 [hereinafter June Hr’g Tr.], at 83–84 (defense counsel agreeing that Defendant is
entitled only to qualified immunity). Because competing considerations must be balanced when
evaluating a claim of qualified immunity, including the views of the incumbent President,
see Thompson v. Trump, 20 F.4th 10, 32 (D.C. Cir. 2021), the court is better equipped to make that
determination. The court therefore will permit Defendant, through his own testimony or other
evidence, to establish the factual predicate for the actual, proper invocation of executive privilege
or testimonial immunity, or both, by the former President. 1
Three points of clarification are important at this juncture.
First, the claimed assertion of testimonial immunity is relevant only to Count Two—
contempt of Congress for refusing to provide testimony. See Indictment, ECF No. 1, at 7. It does
not extend to Count One—contempt of Congress for refusing to produce records. Id. at 6.
Testimonial immunity, as the name implies, extends only to testimony. The rationale for such
immunity simply does not apply to the production of records. See Testimonial Immunity Before
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The Department of Justice did not publicly announce its view that a former aide of a former President is entitled to
no more than qualified testimonial immunity until after Defendant received his subpoena. See Stmt. of Interest of the
U.S., Meadow v. Pelosi, No. 21-cv-3217 (CJN), ECF No. 42, at 9 (July 15, 2022). Even if Defendant declined to
comply with the subpoena because he believed he enjoyed absolute testimonial immunity, an honest mistake of law
is not a valid defense to contempt of Congress. See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968,
at *13 (D.D.C. Jan. 19, 2023). And he now agrees that he was entitled to no more than qualified immunity.
See June Hr’g Tr. at 83–84. Moreover, Defendant has noticed a defense of entrapment by estoppel, see Def.’s Suppl.
Notice, ECF No. 92, which “implicates due process concerns under the Fifth and Fourteenth amendments.”
United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994). The court addresses the availability of that defense,
and the attendant due process concerns, in a separate order.
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Cong. of the Former Couns. to the President, 43 Op. O.L.C. 1, 6–7 (May 20, 2019) (explaining
that a question-by-question invocation of executive privilege, as an alternative to absolute
testimonial immunity, “is insufficient to ameliorate several threats that compelled testimony
poses,” such as the “substantial risk of inadvertent or coerced disclosure of confidential
information”).
That said, Defendant may lay the foundation for the proper invocation of executive
privilege as to Count One. To do so, however, he must make two showings. One, because he
produced nothing, he will have to establish that the responsive records he possessed pertained only
to official acts. Executive privilege does not reach any records that Defendant had relating to
unofficial acts, so unless another privilege applied (and he did not invoke one), he was compelled
to produce such records. See Thompson, 20 F.4th at 25–26 (explaining scope of executive
privilege); Testimonial Immunity Before Cong. of the Assistant to the President and Senior Couns.
to the President, 43 Op. O.L.C. at 2, (July 12, 2019) (opining that “a member of the President’s
inner circle [could] not be compelled by a congressional committee to testify about matters related
to her official duties”). And, two, he will have to demonstrate that President Trump invoked
executive privilege “after actual personal consideration.” United States v. Reynolds, 345 U.S. 1,
8 (1953); Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 389 (2004)
(“Executive privilege is an extraordinary assertion of power ‘not to be lightly invoked.’”) (quoting
Reynolds, 345 U.S. at 7). Both conditions must be met for Defendant’s noncompliance to fall
outside the contempt statute. See Gorsuch Memo at 106, 139–40 (opining that the contempt statute
did not apply to an EPA Administrator who, at the direction of the President, withheld
64 documents in response to a congressional subpoena after the President had received “the
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unanimous recommendation of all Executive Branch officials involved in the process” to invoke
privilege as to those records).
Defendant contends that he was somehow denied due process of law because the Select
Committee did not afford him the opportunity to distinguish between privileged official records
and nonprivileged personal records. Def.’s Due Process Resp., ECF No. 95, at 4. The evidence
is to the contrary. On February 9, 2022, Defendant agreed by email to accept service of the
subpoena, which called for him to produce records by February 23, 2022. Gov’t Suppl. Br. at 2
(citing Gov’t Suppl. Br., Ex. 1, ECF No. 79-1 [hereinafter Ex. 1], at 29–30). He also told the
Committee on that date, “no counsel. Executive Privilege.” Id. The production date passed
without Defendant making any contact with the Committee. Id. On February 24, 2022, the Select
Committee emailed him to remind him about the expired deadline and the upcoming deposition
date of March 2, 2022. Id. Defendant did not appear for testimony on that date, and he produced
no records. Defendant therefore had weeks to attempt to segregate privileged from unprivileged
records. He cannot now complain that the Select Committee did not afford him sufficient time to
do so.
Second, the court does not at this time prejudge what type or manner of instruction from
President Trump might suffice to constitute a “formal” assertion of privilege or immunity.
See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968, at *2–3 (D.D.C. Jan. 19,
2023). The court previously left that question unanswered because Defendant had not come
forward with any evidence of a presidential invocation. Id.; Jan. Hr’g Tr. at 12. Defendant’s
burden will include showing that the claimed instruction to invoke was a “formal” one.
Finally, the court reserves on the question of whether Defendant waived his present claim
of testimonial immunity by failing to raise it before the Select Committee. See Gov’t Suppl. Br. at
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13–14; Navarro, 2023 WL 371968 at *7 (citing waiver cases from the Supreme Court and the D.C.
Circuit). According to the evidence known to the court, Defendant told the Committee that
President Trump had “invoked executive privilege.” See Gov’t Suppl. Br. at 3 (citing Ex. 1 at 32);
see also id. at 2 (citing Ex. 1 at 29–30). He made no mention of testimonial immunity. At the
evidentiary hearing, Defendant may present evidence relevant to the question of waiver.
III.
Defendant also seeks additional categories of discovery from the government. Specifically,
he demands any materials provided by the Select Committee to the Department of Justice that:
(a) “reference Dr. Navarro”; (b) “include any reference to an assertion of executive privilege by
any deponent or interviewee on behalf of by [sic] President Biden or former President Trump”;
(c) “include any reference to any witness’s refusal to answer a question posed by the Select
Committee in its interview and/or deposition of that witness”; and (d) “include any correspondence
between the Department and the Select Committee concerning any of the foregoing, including any
decision to refer and/or prosecute any such witness for contempt of Congress.” Def.’s Mot. at 17.
Defendant says he needs such materials because “evidence of former President Trump’s invocation
of executive privilege [as to others] provides circumstantial evidence that the privilege was
invoked with respect to Dr. Navarro.” Id. at 18.
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A.
As to his request for materials the Department received from the Select Committee that
“reference Dr. Navarro,” id. at 19, the court orders the government to produce any communications
not previously disclosed between the Select Committee and the Defendant about the subpoena.
Other than such communications, the court cannot discern how interview transcripts and other
documents that merely refer to Defendant are material to preparing his defense.
B.
The government need not produce records reflecting any other witness’s assertion of
executive privilege before the Select Committee. Defendant seeks that evidence in part to show
that because President Trump instructed others to invoke executive privilege, the President
directed Defendant to do the same. That is a demand for other acts evidence covered by Federal
Rule of Evidence 404(b). See FED. R. EVID. 404(b) (other acts evidence “is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted in accordance
with the character” unless it is “admissible for another purpose”). But evidence held by the Select
Committee that President Trump directed others to invoke executive privilege is not probative of
Defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Id. Moreover, as the court has already held, it is not a valid defense
that Defendant had a good faith but mistaken belief that he was excused from compliance because
President Trump had invoked executive privilege as to others. See Navarro, 2023 WL 371968, at
*13.
C.
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IV.
For the stated reasons, Defendant’s motion for an evidentiary hearing is granted, and his
motion to compel discovery is granted in part and denied in part.
Dated: July 28, 2023 Amit P. Mehta
United States District Court Judge
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