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(Photo by Drew Angerer/Getty Images)
We’ve made a lot of fun of Trump econ crank Peter Navarro’s shenanigans as a pro se litigant, both in his criminal prosecution for contempt of congress and in his misbegotten lawsuit against the January 6 Select Committee for seeking his phone records. But now that he’s hired white collar defense lawyer John Rowley and environmental lawyer John Irving, both of whom are former federal prosecutors, and yet the level of batshittery remains almost unchanged. So … apologies, Doctor Navarro.
The latest craziness comes in a civil complaint filed in August by the Department of Justice seeking to force Navarro to hand over emails from his ProtonMail account pertaining to his official duties, which he was supposed to copy the government on under the Presidential Records Act. It’s more than a little bit ironic that a bunch of guys who got elected by screaming that Hillary Clinton needed to go to email jail for using a homebrew server, consistently ignored laws requiring government communications to take place via official channels starting January 21, 2017.
There is no actual disagreement that Navarro possesses the emails, some of which have been turned over to the House Select Committees on coronavirus and the January 6 Capitol Riot by his correspondents. Indeed, his lawyers admitted in July that the search parameters supplied by the National Archives (NARA) yielded between 200 and 250 responsive documents. But in a letter dated July 29, 2022, attorney John Irving told Gary Stern, NARA’s general counsel, that he wasn’t going to hand them over without act of production immunity from the Justice Department.
The letter hints darkly at a conspiracy between the committees and Biden’s Justice Department, and points to Navarro’s own efforts to discover communications between the White House, congress, and prosecutors in his criminal contempt case — efforts which US District Judge Amit Mehta has since put the kibosh on.
“Put simply, we are concerned that the government is using the Presidential Records Act as a discovery tool, not only with respect to Mr. Navarro’s ongoing criminal case, but with respect to broader investigations being conducted by both Congress and the Executive Branch,” Irving wrote. “While we acknowledge Mr. Navarro’s obligations under the Presidential Records Act we also must acknowledge the conflict as between the Act and his rights under the Constitution, including the Fifth Amendment.”
The Fifth Amendment argument is an odd one, particularly since Irving cites Fisher v. United States, 425 U.S. 391, 410-11 (1976), a case in which the Supreme Court forced the defendants to hand over incriminating tax documents, writing that “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.”
Navarro isn’t being asked to hand over the emails where he hypes the benefits of hydroxychloroquine as a coronavirus treatment because they contain evidence that he’s a criminal, or even an idiot. The messages are, by their nature, government property, and so it is frankly bizarre that the case he cites is one in which the Court held that “the papers demanded here are not his ‘private papers,’” and thus “the existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers.”
But everything with these fools is bizarre, including yesterday’s prosecutorial motion for summary judgement with a writ of replevin demanding that the court order Navarro to turn over the documents forthwith. Because every Trumpland scenario devolves into a law school issue spotter eventually.
“Under D.C. law, the United States is entitled to recovery of its property,” prosecutors write in a supporting memorandum. “Alternatively, to the extent that federal law controls, the United States is entitled to recover its property as a matter of federal common law. Either way, the Court should issue a writ of replevin directing Defendant to return the government’s property.”
US District Judge Colleen Kollar-Kotelly was less than impressed with the government’s dispatch, writing in a minute order that, while “technically timely pursuant to Federal Rule of Civil Procedure 56(b),” she’s not about to issue relief before Navarro has even responded to the complaint. The court stressed that Plaintiff has moved for summary judgment before Defendant has filed an answer or otherwise responded to Plaintiff’s complaint. But, she notes, “this minute order should not be construed to bar a motion for preliminary relief pursuant to Federal Rule of Civil Procedure 65.”
Hint, hint.
US v. Navarro [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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