Legal experts say the indictment filed on Friday against former Trump White House official Peter Navarro is nothing more than a political witch hunt.
Navarro was indicted on contempt charges after defying a subpoena from the Democrat-dominated House panel investigating the Jan. 6, 2021, breach of the U.S. Capitol.
Under the subpoena, which was issued in February, Navarro was instructed to provide a deposition and documents to the committee. Because he refused, Navarro faces two counts. Each of the charges carries potential penalties of between 30 days and a year in jail and a fine of up to $100,000, according to the Department of Justice.
He is the second Trump adviser to be charged with contempt of Congress for refusing to cooperate with the Jan. 6 committee. Navarro has claimed executive privilege, which the House panel has rejected, claiming its questions don’t violate any areas of privilege.
Navarro was serving as an official adviser to the president at the time of the Jan. 6 breach. That’s in direct contrast with Steve Bannon, who, like Navarro, has been charged, but was an outside adviser to Trump and not an official member of his administration at the time of the breach.
The House has also voted to hold former Trump aide Dan Scavino and former chief of staff Mark Meadows in contempt, but the DOJ has not prosecuted either of them to date.
John Tolley, a New York-based attorney and former prosecutor, called the indictment against Navarro “interesting because it does bring up some major constitutional issues.”
While rare, it is not unprecedented for the House to vote to hold high-profile figures in contempt of Congress.
The Republican-controlled House opted to hold Obama administration Attorney General Eric Holder in contempt during an investigation into a gun-running operation, however, a federal judge declined to place him behind bars for failing to hand over documents.
Former Obama-era IRS official Lois Lerner was also able to escape facing criminal contempt charges from the Justice Department despite being held in contempt.
In 2008, the House Oversight Committee sent a criminal referral over to the Justice Department raising concerns that baseball star Roger Clemens lied under oath about the use of performance-enhancing drugs. Clemens was tried and acquitted.
Tolley said Navarro’s prosecution is uncommon, especially when comparing it to similar instances, like those of Holder and Lerner.
“He should have been held in contempt as opposed to criminally prosecuted,” he said.
Michael Abramson, a practicing attorney, host of “Advancing the Agenda” podcast, and Newsmax insider, said the DOJ needs to handle referrals from Congress consistently.
“If it is a Bush DOJ, you want them to be acting the same way as a Biden DOJ would act so the principles of law are consistently applied,” he said. “You want consistency. The law exists to protect people. Policies and procedures have to be followed for people to be treated fairly. When these policies and procedures are not followed you come into a situation where the rights of individuals may be attacked.”
Juscelino Colares, a law and political science professor at Case Western Reserve University, said it “definitely seems like we have come to a point where we have a two-tier justice system” of “selected enforcement” where the FBI acts on indictments against Republicans when the Democrats are in control of the House but not at all when Republicans are in control of the House.
“We can’t be a nation of laws and at the same time a nation where the laws are only enforced against one group of people,” he said. “That’s not conducive to building the public trust in our institutions.”
While holding public figures in contempt is not uncommon, the DOJ doesn’t typically prosecute a person claiming executive privilege.
Navarro has previously argued that he should be protected because he was serving in an official presidential capacity.
Noting that Clemens was eventually exonerated by a Washington, D.C., jury despite facing a bipartisan criminal referral, Navarro pointed out the difference between himself and the MLB All-Star pitcher.
“I'm not as good a baseball pitcher [as] Roger Clemens. But he never served in the White House,” Navarro said. “The idea [of] stripping President Trump of executive [privilege] is fanciful and absurd.”
The FBI arrested Navarro Friday morning. During his first court appearance later that afternoon, Navarro said that he was on his way to Nashville, Tenn., for a television appearance Friday morning and that an FBI team let him get to the airport and try to board a plane before putting him in handcuffs. He said he was then put in a jail cell.
Abramson said the manner of Navarro’s arrest also raises concerns.
“There are clearly less obstructive manners of arresting somebody,” he said.
Navarro also told Magistrate Judge Zia Farqui that he filed a lawsuit against the House of Representatives and the Jan. 6 Committee.
On Tuesday, Navarro filed suit against Congress claiming the House select committee is unlawful so the subpoena it issued to him in February is unenforceable under law.
"This is something that needs to get to the Supreme Court," he told the judge Friday. “Department of Justice appears to have colluded with the White House and Congress.”
Tolley said if he were representing Navarro he would have instructed him to appear for the requested testimony, but not answer certain questions if they would have violated executive privilege.
“This potentially could have saved him from being indicted on the count for failure to appear,” he said.
On the other count of failing to provide documents, he said Navarro should have provided a privilege log that would outline the documents in his possession but claim they were privileged and could not turn them over.
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