Former Trump White House aide Peter Navarro’s bid to delay his prison sentence as he appeals his conviction was rejected on March 14 by a federal court.
Mr. Navarro, who was convicted in 2023 of contempt of Congress for defying a subpoena from the House Jan. 6 select committee, is slated to report to prison on March 19.
“Appellant has not shown that his appeal presents substantial questions of law or fact likely to result in reversal, new trial, a sentence that does not include a term of imprisonment, or a reduced sentence of imprisonment that is less than the amount of time already served plus the expected duration of the appeal process,” the court said.
The ruling from the three-judge panel, which included Circuit Judges Patricia Millett, Cornelia Pillard, and Robert Wilkins—all of whom were appointed by former President Barack Obama—was unanimous.
Federal law requires individuals seeking release pending an appeal to present a “substantial question of law or fact” that is likely to result in one of the outlined results.
According to circuit precedent, a substantial question is a question “that very well could be decided the other way.”
Mr. Navarro argued in filings to the appeals court that, as a senior presidential adviser, he was protected by executive privilege. He said the case presents questions that could be decided the other way and thus the appeals court should grant his motion.
“Because the congressional subpoena to Dr. Navarro implicated former President Trump’s privilege, it was incumbent upon Congress and/or the Department of Justice to confirm with the Judicial branch that the privilege could be overcome, and, having failed to do so, the indictment as against Dr. Navarro must be dismissed,” one filing stated. “At the very least, this issue presents a “close question” or a question, “that very well could be decided the other way,” and this court should order that Dr. Navarro be released pending his appeal.
Government officials in a brief to the court said that Mr. Navarro didn’t present any substantial questions. Government lawyers said that Mr. Navarro never established that President Trump invoked privilege and that President Joe Biden waived any privilege.
“And even if President Trump had asserted executive privilege, Navarro still could not show a likelihood of reversal or a new trial, because it would not have justified his total noncompliance with the subpoena,” they said.
Mr. Navarro had said that even if there was no presumptive privilege, he “reasonably believed he was dutybound to assert former President Trump’s executive privilege,” which he said should preclude prosecution for contempt.
“Once an assertion of executive privilege had been made, it was incumbent upon the respective government branches to navigate its application,” one filing stated.
In another, his lawyers said that “the government blithely dismisses Dr. Navarro’s argument that requiring a formal invocation by a former president risks vitiating the privilege entirely insofar as to hold otherwise would preclude a former president unexpectedly suffering from disability or death to assert the privilege and enable the recalcitrant or disgruntled to affirmatively waive the privilege unbeknownst to the president.”
A lawyer for Mr. Navarro declined to comment on the new ruling.
Mr. Navarro was sentenced to four months in prison by Judge Mehta, another Obama appointee. Mr. Navarro was ordered by federal officials to report to the Bureau of Prisons in Miami for detention no later than 2 p.m. on March 19, according to his lawyers.
Headed to the Supreme Court?
Stanley Brand, one of Mr. Navarro’s lawyers, said in a recent filing that Mr. Navarro planned to appeal to the U.S. Supreme Court if the appeals court ruled against him. That’s the nation’s top court and the next place to go following the rejection by the appeals court.“I believe it’ll eventually go to the Supreme Court and settle good law on constitutional separation of powers and executive privilege,” he said.
The contempt charges were brought after the U.S. House’s select committee investigating the Jan. 6, 2021, breach of the U.S. Capitol subpoenaed Mr. Navarro and he declined to testify or provide documents.
“I was more than happy to comply with that subpoena if they simply called the president and asked for a waiver of the privilege,” he said. “And I think it tells the lie, in this whole case, that they never made one phone call, they never lifted a finger to call him to get the information they claimed they needed to have.
“Had they made that one phone call, we wouldn’t be sitting here.”
