OPINION:
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. U.S. v. 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.
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 adviser 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 adviser and alter 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 adviser can be compelled to testify or provide documents by a congressional committee without violating the constitutional separation of powers. For more than 50 years, the Department of Justice 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.
DOJ has zealously defended absolute testimonial immunity for senior advisers for over 50 years. With a July 12, 2019, slip opinion, DOJ made clear this also applied to nonofficial activities. How, therefore, can 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 DOJ justify a prosecution? This, too, can’t be the law.
Seeking clarity, the court, in this case, asked the government to explain whether 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 Stewart 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 advisers, 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 adviser 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 this crushing weight of evidence but still ruled the privilege had not been correctly invoked. It even ruled that 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 advisers of testimonial immunity? Such a stripping would, of course, turn the privilege into a partisan football and destroy it as we know it.
Justice Brett Kavanaugh appears to have already signaled that he, at least, understands the implications. Yet the court in this case appears to have ruled that President Biden can indeed strip former President 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 want to help take this landmark case to the Supreme Court, please donate to www.defendpeter.com.
• Peter Navarro created jobs, saved lives, and stood up to China for four years in the Trump White House. This column originally appeared at www.peternavarro.substack.com.
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