(Bloomberg) -- A judge delayed a contempt trial for Peter Navarro after a lengthy debate about whether the former White House trade adviser could rely on executive privilege as a defense.
US District Judge Amit Mehta said Friday he would allow defense and prosecution lawyers time to brief him on whether Navarro was immune from testifying to the Congressional committee investigating the Capitol riot even if former President Donald Trump had invoked executive privilege.
During a pre-trial conference, Mehta said he believed Navarro could put on a defense that Trump had invoked executive privilege preventing him from responding to the subpoena. A jury should be able to decide whether there was an actual invocation of executive privilege, he said.
Previous Department of Justice opinions show that Congress doesn’t have the authority to compel a senior aide to testify if a president has invoked executive privilege, the judge said. It is the government’s responsibility to prove Congress had the authority to compel Navarro, Mehta said.
Prosecutors argued there shouldn’t be any privilege because at the time of the subpoena, Navarro was a former adviser and Trump was a former president. Even if the jury were to believe Trump had invoked executive privilege, Navarro still would have had to provide a subpoena log and appear at the deposition, prosecutor John Crabb argued.
Trump, in a letter Navarro’s attorneys filed with the court earlier this week, had claimed that his communications with Navarro during his presidency were protected by executive privilege. Trump’s lawyer wrote in the letter dated Jan. 23 that Navarro “had an obligation to assert executive privilege” when responding to a subpoena from the House Jan. 6 committee.
The letter doesn’t say Trump actually directed Navarro to invoke executive privilege with respect to a subpoena sent by the committee, Mehta said in denying the defense’s motion to reconsider his refusal to dismiss the case.
“There is no evidence before me that the president invoked privilege,” Mehta said.
The government charged Navarro with two counts of contempt for refusing to hand over documents and provide testimony to the committee.
(Updates with judge’s ruling to delay trial.)
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