Coming to a Supreme Court Near You – Executive Privilege on Trial

Let the Trial Begin

Team,

Spent my first day of the trial picking a jury. Words can nar express….

Here’s my thoughts about the case from an article in the Washington Times. Would love your comments.

This week, I go on trial for an alleged crime that no senior White House official has ever been charged with.  Before the first juror is seated, I have been stripped of virtually every possible defense.  This can’t be the law, which is why this case is headed to the Supreme Court.

A Supreme Court case must be of national importance.  United States v. Peter Navarro is surely that.  It involves an unprecedented attack on executive privilege and the constitutional separation of powers by a partisan Congress and weaponized Department of Justice (DOJ). 

Executive privilege has guarded the White House from partisan attacks since President George Washington.  Courts have noted: Because “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately,’ the privilege ‘safeguards the public interest in candid, confidential deliberations within the Executive Branch.” 

If the Biden/Garland DOJ succeeds in putting a senior White House advisor in prison for simply doing his duty, it will destroy executive privilege and spark a spurious subpoena arms race on Capitol Hill.  This can’t be the law.

A Supreme Court case must also be one of “first impressions” addressing open questions for which there is no settled law.  Because this is the first case brought against a senior White House advisor and altar-ego of the president in history, there are no directly comparable court rulings, numerous conflicting opinions, and a host of open questions to be settled.

The overarching issue is whether a senior White House advisor can be compelled to testify and/or provide documents by a Congressional Committee without violating the Constitutional separation of powers.  For more than 50 years, the DOJ has said absolutely not.  Yet now, a weaponized DOJ, in partisan hands, is prosecuting alleged infractions.  This can’t be the law.

Unresolved, too, by any settled law is whether the privilege is presumptive. If not, what happens if a president dies – does the privilege die too?   That can’t be the law.

And how might the privilege be qualified?  One possible guide here may be a Watergate era case, but it cabined qualifying the privilege to criminal matters, which this misdemeanor case is not.

The DOJ has zealously defended absolute testimonial immunity for senior advisors for more than 50 years.  With a July 12, 2019, Slip Opinion, the DOJ made clear this also applied to non-official activities.  How, therefore, can the DOJ now prosecute for an alleged violation in violation of its own policy?  This can’t be the law.

And what exactly is the relationship between executive privilege and testimonial immunity?  Are they one and the same?  If they differ, do both require an invocation?  If testimonial immunity is presumptive as DOJ policy indicates, how can the DOJ justify a prosecution?  This, too, can’t be the law.

Seeking clarity, the Court in this case asked the government to explain whether the DOJ had changed its policy on absolute testimonial immunity.  If not – Door One -- why did it still prosecute?  If so – Door Two -- how had the policy changed?

If the government had acknowledged that the policy remained in effect, the prosecution was wrongful and the case must be dismissed.  If the policy had changed, the defendant could not be prosecuted for what had transpired before the change, having acted in good faith.

Predictably, when the government submitted its brief, it went through Door Three by stonewalling.  The Court’s response was not to press the government for an answer but simply strip out a defense tailor-made for this case, i.e., “entrapment by estoppel.”  This can’t be the law – and we still don’t know what DOJ policy is.

Yet another central issue is: What constitutes a lawful invocation of executive privilege?  Here, there are no rules that say a president has to issue a letter from a lawyer or even make a formal statement.  Nor is there a Congressional form to fill out or box to check.

To resolve this question, the Court in this case seems to have used the same approach Supreme Court Justice Potter Steward used to define pornography: “I know it, when I see it.”

Through an evidentiary hearing, the Court saw five phone calls between the president and the defendant, numerous other communications between the defendant and the president’s lawyers and advisors, clear testimony that the privilege had been invoked after serious consideration, and a personal visit with the president at Mar-a-Lago that confirmed the invocation.

The Court also saw that the privilege extended to virtually every other top White House advisor subpoenaed, such invocations were never challenged, the Committee led the defendant to believe it believed the privilege had been properly invoked, and the Committee never bothered to contact the president either to waive the privilege or confirm its invocation. 

The Court saw all of this crushing weight of evidence but still ruled the privilege had not been correctly invoked.  It even ruled Congress had no burden to ask the defendant to confirm the privilege, which he easily could have done.  This can’t be the law.

There is also this open issue: Can a sitting president strip a former president of the privilege and the former president’s advisors of testimonial immunity?  Such a stripping would, of course, turn the privilege into a partisan football and destroy it as we know it.  Justice Kavanaugh appears to have already signaled he, at least, understands the implications.  Yet the Court in this case appears to have ruled that Joe Biden can indeed strip Donald Trump of the privilege and the defendant of testimonial immunity.  This can’t be the law.

Finally, and anomalously, the Court stripped the defendant of the defense of selective prosecution.  Yet three senior White House advisers were held in contempt by Congress for alleged identical charges while only the defendant was prosecuted.  This can’t be the law.

If you would like to help take this landmark case to the Supreme Court, please donate to www.defendpeter.com. 

Dr. Peter Navarro created jobs, saved lives, and stood up to Communist China for four years in the Trump White House.  Follow him and this trial at www.peternavarro.substack.com

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