Intent on vindication after spending four months in prison last year, Peter Navarro asked a federal appeals court on Sunday night to force Donald Trump’s justice department to explain why it would not defend his 2022 conviction for defying a January 6 committee subpoena.
The request to the US court of appeals for the DC circuit is fraught for the department as it would have to confront the appearance that it quietly dropped the case in order to shield Navarro after he was tapped as a senior adviser to the president.
Navarro’s 13-page filing also has the potential to set precedent for years to come over complicated immunity and separation of powers questions concerning the ability of White House advisers to defy congressional subpoenas without facing prosecution.
“The department’s abrupt withdrawal now deprives the court of transparency about the department’s current view concerning the landmark constitutional issues presented, undermines the fairness of the process, and burdens the defense with uncertainty,” the filing said.
Navarro was subpoenaed in 2022 by the House select committee investigating the January 6 Capitol riot for his involvement in a plan to delay Congress’s certification of the 2020 election results to change the outcome, including to recruit state lawmakers to join the effort.
When Navarro ignored that subpoena, he claimed he was immune as a former White House adviser and that Trump had intended to block any testimony to Congress in an earlier invocation of executive privilege against a subpoena from a different committee.
That argument proved unsuccessful at trial and Navarro was convicted on two counts of contempt of Congress after the trial judge, Amit Mehta, found the letter did not apply to the January 6 panel’s subpoena and did not insulate him from answering questions unrelated to Trump that were not subject to privilege protections.
But once Trump returned to office, and Navarro joined the White House while his appeal was pending, federal prosecutors disclosed they were no longer taking the same positions as the Biden justice department and urged the court to appoint an external lawyer to try to uphold his conviction.
Navarro’s filing said prosecutors should not be permitted to abruptly stop fighting against his appeal without providing a detailed explanation, as it created uncertainty on whether a senior White House adviser could be prosecuted for contempt in the first place.
“DoJ told the courts my appeal raised no substantial questions, forcing me to surrender and lose four months of freedom. Now the same DoJ attorney of record wants to yank his own brief. You don’t make that pivot unless serious constitutional questions exist,” Navarro said in a statement to the Guardian.
Navarro’s filing also contended that the department was obliged under US supreme court precedent to give a detailed explanation when abandoning a legal position, an effort aimed at giving lower courts greater guidance.
It was not immediately clear whether the justice department would voluntarily provide an explanation. A spokesperson did not respond to a request for comment.
Navarro’s lawyers include Stan Brand and John Rowley, who represented multiple advisers in the criminal cases against Trump and worked under joint agreements with Trump’s deputy attorney general, Todd Blanche. Navarro’s third lawyer, Stanley Woodward, is the nominee to be Trump’s associate attorney general and has recused himself from the appeal.
