Peter Navarro Says He Doesn’t Have To Give Back Stolen Docs Because It Would Make Him Look Super Guilty

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(Photo by Drew Angerer/Getty Images)

Trump econ crank Peter Navarro is a universal irritant on the DC federal docket. Thanks to his dogged refusal to abide by federal records laws, the self-professed expert on everything from coronavirus to the electoral college has made himself a boil on the ass of three US District Court judges in DC over the past six months alone.

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On May 31, he filed an 88-page pro se complaint against House Speaker Nancy Pelosi and the January 6 Select Committee seeking a declaratory judgment that the body lacked the power to subpoena him, as well as an injunction against the Justice Department to stop it prosecuting him for blowing off said subpoena. Unsurprisingly, the complaint failed to do the trick with Judge Randolph Moss, and on June 2, Navarro was indicted on two counts of contempt of Congress. Womp womp.

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He then spent several delightful weeks spamming Judge Amit Mehta’s law clerk with irate letters accusing the FBI of misconduct while insisting that he was going to continue to represent himself pro se come hell or high water. Navarro did eventually hire lawyers who promptly dismissed the civil suit against Pelosi et al., but his criminal defenses thus appear to consist solely of repeating every argument rejected by Judge Carl Nichols in Steve Bannon’s contempt of Congress case, and hoping Judge Mehta won’t notice.

In the meantime, both the January 6 Committee and the House Select Subcommittee on the Coronavirus Crisis have discovered that Navarro, who has refused to comply with subpoenas duces tecum from either body, used a ProtonMail account to conduct official government business. And lo, a second US v. Navarro was born in August when the DOJ filed a writ of replevin and asked Judge Colleen Kollar-Kottely to tell Navarro to hand over the emails.

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Navarro was originally represented in the two remaining cases by Trumpland regulars John Rowley and John Irving. But his most recent filings are signed by Stanley Woodward, a DC attorney representing Trump’s declassification guru Kash Patel, who appeared last week before a grand jury investigating the Mar-a-Lago documents; Oath Keeper Kelly Meggs, who has been charged with seditious conspiracy; and the Mar-a-Lago valet who told the Justice Department that Trump moved boxes after being subpoenaed.

Navarro’s latest filing, a response to the government’s motion for summary judgment, is so bizarre that it almost feels like the good old days when he was drafting his own pleadings. (Maybe he’s getting help from Ron Vara!)

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The first paragraph contains the unsubstantiated assertion that the Presidential Records Act cannot be enforced because “Congress did not intend for the United States to utilize the PRA as a weapon as against those persons who become political opponents of the current administration by virtue of their past service.”

It goes on to assert that the government has no right to collect wrongfully retained documents; that the January 6 Committee and the Justice Department are in cahoots, and thus it is illegal to demand he hand over government records; that the PRA imposes no deadline, and thus it is fine for him to retain those records for years on end after leaving office; and that courts haven’t adjudicated the validity of the Presidential Records Act, and thus it is unfair to sue to force him to comply with it.

He also makes a truly wild claim that the PRA speaks only of documents created by government officials, not those received, and thus Navarro doesn’t have to turn over anything anyone sent to him.

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The United States has provided no evidence to demonstrate that “create or send” also means “receive”, and Section 2201(2) defines Presidential records to include documentary materials “created or received,” Congress’s choice to not include the term “receive” in Section 2209 at the very least casts ambiguity on whether it applies to when an email is received.

Ummm, okay, weirdo.

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But the gravamen of the brief is an insistence that Navarro has a Fifth Amendment right not to hand over documents which might inculpate him — in this case for the crime of wrongfully retaining government records. The problem, however, is that he completely misconstrues the “right of production” privilege to mean something like “having to give back what I stole makes me look really guilty, so I don’t have to do it.” Indeed, Navarro relies on three cases which wildly undercut his own claim.

In Fisher v. United States, the OG “right of production” case, the Supreme Court differentiated between being forced to admit that something exists, and being forced to disclose a document whose existence and location are a “foregone conclusion.” Here, Navarro’s prior counsel negotiated for months with the National Archives and already admitted there were somewhere between 200 and 1,700 responsive documents in his client’s ProtonMail account — although his current counsel coyly demurs that he “may or may not currently possess documents that are subject to the PRA.”

That last disclosure came before Navarro demanded a grant of immunity before producing any documents at all. In support of this ransom, he cites a case in which immunity was granted and the government essentially reneged on the offer. Most confusingly, Navarro relies on US v. Dean, a 1993 DC Court of Appeals Case in which a HUD official in the Reagan administration refused to hand over government documents in her possession citing her Fifth Amendment right against self-incrimination. The court found that Dean was a mere custodian of the records, in which she had no ownership interest, and thus could not refuse to surrender them.

“It is well settled that Dean has no Fifth Amendment privilege with respect to the contents of government records in her possession,” the court wrote, adding later that “Although the Independent Counsel may not use Dean’s act of production against her, he may introduce testimony that the documents she possessed are HUD documents produced by HUD in response to a subpoena.”

All of which would appear to undercut Navarro’s position that he has a Fifth Amendment right not to hand over the wrongfully retained emails which he has already admitted exist in his ProtonMail account. Yes, even if that leads to a criminal prosecution and yet another judge on at the US District Court in DC being cursed with this nutbag and his batshit lawyers.

US v. Navarro [Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Courts, Government, Peter Navarro