Background
Peter K. Navarro, a former adviser to President Donald J. Trump, publicly claimed that he devised a strategy to delay certification of the 2020 presidential election results. The House Select Committee investigating the January 6 attack subpoenaed Navarro for documents and deposition testimony concerning that strategy, his reports and book, election-fraud claims, and related events.
Navarro produced no documents, supplied no privilege log, and did not appear for his deposition. He asserted that former President Trump had invoked executive privilege, but the Select Committee offered to address specific privilege claims and President Joseph R. Biden Jr. declined to assert either executive privilege or testimonial immunity. After the House held Navarro in contempt, a grand jury charged him with two violations of 2 U.S.C. § 192. The district court found after an evidentiary hearing that Trump had not invoked executive privilege for this subpoena, barred Navarro from presenting his claimed good-faith belief as a defense, and entered judgment after a jury convicted him on both counts.
The Court’s Holding
The D.C. Circuit affirmed. It held that executive privilege must be affirmatively invoked for the particular subpoena by a president or an authorized designee. The district court had authority to decide whether an invocation occurred and did not clearly err in finding that neither Trump nor any designee invoked executive privilege regarding the Select Committee’s subpoena to Navarro.
Navarro’s separation-of-powers defense therefore failed because there was no clash between a presidential invocation of privilege and Congress’s enforcement of its subpoena. His defense independently failed because he completely defaulted even though the subpoena sought at least some information— including material from his private publications and public statements—that could not have been protected by executive privilege. The court also upheld the exclusion of Navarro’s asserted belief that executive privilege excused compliance and affirmed both contempt convictions.
Key Takeaways
- Executive privilege does not arise automatically; a president or authorized designee must affirmatively invoke it for the particular subpoena.
- A federal court may determine whether executive privilege was properly invoked without violating the separation of powers.
- A blanket privilege assertion does not excuse complete noncompliance when a congressional subpoena also seeks concededly nonprivileged documents or testimony.
Why It Matters
The decision reinforces Congress’s ability to enforce investigative subpoenas and requires witnesses claiming executive privilege to establish an actual, subpoena-specific invocation by the president or an authorized representative. An unsupported assertion by the subpoena recipient is insufficient.
The ruling also underscores that privilege claims ordinarily must be addressed with specificity. A witness cannot refuse every aspect of a subpoena merely because some requested presidential communications might arguably be privileged.