Peter Navarro will need the Supreme Court’s help after his latest loss in his contempt-of-Congress appeal.
On Friday, the full federal appeals court in Washington, D.C., declined to hear his case. The appeals court sits just below the high court in the appellate process, making the justices the next step in Navarro’s legal challenge.
The White House trade adviser himself signaled a high court petition ahead, posting on social media after the appellate denial that the case “was always headed to the Supreme Court” and that “Deep Blue D.C. Circuit’s denial simply clears the runway.”
None of the appeals court’s Republican appointees dissented from the denial as they did in a similar appeal pressed by Steve Bannon, whose case the Justice Department is now attempting to dismiss. Navarro’s lawyer said his client has “turned down” a pardon in order to “vindicate his case in court.”
Navarro’s latest rejection follows a three-judge appellate panel ruling against him last month, which is what led him to file the failed rehearing petition. In it, he argued the panel’s reliance on the appeals court’s own precedent “grievously misconstrues” the law and “flouts decades of Supreme Court precedent.”
Navarro was prosecuted during the Biden administration for not complying with a House Jan. 6 select committee subpoena. The Trump adviser had moved to dismiss his indictment on the grounds that the president invoked executive privilege on his behalf. But the trial judge found that didn’t happen and blocked Navarro from arguing to the jury that he mistakenly thought he didn’t have to respond to the subpoena.
“Because President Trump did not, in fact, invoke executive privilege, neither the Select Committee’s subpoena nor the prosecution for Dr. Navarro’s contumacy in the face of that subpoena presents the separation-of-powers concerns of which Dr. Navarro complains,” the panel said in rejecting his appeal.
Navarro already served his four-month sentence in the case. The Supreme Court previously rejected his bid to stay free while he appealed.
Despite that prior rejection, the justices can still take up his underlying appeal if they want to. It takes four justices on the nine-member bench to agree to review a petition. They have discretion over whether to do so, and they reject most petitions.
His legal argument centers on the meaning of “willfully” in the federal law under which he was prosecuted. The law says that someone who is “summoned as a witness” by Congress “to give testimony or to produce papers” can’t “willfully” default on a subpoena. Under the D.C. appeals court’s precedent, willfulness requires only intentionality, not evil intent. Navarro argues that precedent is wrong and that, if the law had been correctly interpreted, he could have shown he lacked unlawful intent.
The panel that ruled against Navarro noted he had published a book that took credit for devising a plan to “leverage” the vice president’s authority to “delay certification” of the results of the 2020 presidential election on Jan. 6, 2021. The committee investigating the Jan. 6 attack on the Capitol sent Navarro a subpoena seeking documents related to his book and statements and ordered him to appear for a deposition. The panel recounted that Navarro claimed privilege “before even seeing the subpoena and refused to turn over documents, appear for his deposition, or engage with the Select Committee’s efforts to accommodate his privilege claim.”
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