In United States v. Navarro, a D.C. Circuit panel reaffirmed that the President alone holds executive privilege, and that a mistaken belief that noncompliance with a congressional subpoena is excused will not defend against contempt of Congress charges.
On July 21st, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the convictions of Peter Navarro, former senior White House aide in President Donald Trump’s first administration. The convictions involved two counts of criminal contempt of Congress, 2 U.S.C. § 192. The opinion — written by Judge Patricia Millett and joined by Judges Cornelia Pillard and J. Michelle Childs — held that “privilege must be claimed by the President (current or former) or an official authorized by the President to claim it.” The court also rejected Navarro’s argument that his good-faith but mistaken belief that executive privilege was invoked could excuse his noncompliance with a congressional subpoena, clarifying that “willfulness” under Section 192 requires only a deliberate and intentional default, not a correct understanding of the validity of the subpoena. The opinion significantly raises the stakes surrounding both the assertion of executive privilege, and decisions regarding compliance with congressional subpoenas.
Factual Background
Navarro served as a senior trade advisor in the first Trump White House. After leaving government, he published a book in which he claimed credit for a plan (dubbed the “Green Bay Sweep”) to use the Vice President’s authority under the Electoral Count Act to delay certification of the 2020 election results on January 6, 2021. The text drew the attention of the U.S. House of Representatives Select Committee to Investigate the January 6th Attack (the “Select Committee”), which subpoenaed Navarro for documents and deposition testimony concerning, among other things, his book and public statements discussing the Green Bay Sweep. According to the record recounted by the panel, three minutes after learning of the Select Committee’s subpoena — and before even seeing its contents — Navarro purported to assert executive privilege and then refused to produce documents or sit for a deposition. During the ensuing weeks, the Select Committee attempted to accommodate Navarro’s purported assertion of privilege while Navarro, according to the court record, refused to engage in negotiations. Also during this time, the Deputy White House Counsel to then-President Joe Biden informed Navarro that, in Biden’s view, an assertion of executive privilege in response to the subpoena was “not justified,” and that Biden had “decided not to assert executive privilege as [to Navarro’s] testimony regarding [the subject of the subpoena], or any documents” bearing on them.
After Navarro failed to comply with the subpoena, the full House of Representatives voted to hold him in contempt of Congress and referred the matter to the U.S. Department of Justice for prosecution.
Procedural History
In June 2022, a grand jury indicted Navarro on two counts of contempt of Congress under 2 U.S.C. § 192 based on his failure to produce documents and, separately, his failure to appear for a deposition before the Select Committee. Navarro moved to dismiss the indictment on the ground that President Donald Trump had asserted executive privilege as to the subpoena.
The U.S. District Court for the District of Columbia initially denied the motion, ruling that Navarro had failed to offer any factual support for his claim that Trump had invoked executive privilege as to the Select Committee’s subpoena. At Navarro’s request, the court subsequently held an evidentiary hearing to determine whether Trump had invoked executive privilege. At that hearing, Navarro testified to an informal “protocol” of routing privilege questions through a Trump aide, as well as a three-minute phone call pursuant to that protocol with Trump in which “it was very clear that the privilege was invoked.” However, Navarro failed to produce any documents affirmatively showing Trump had invoked executive privilege as to the Select Committee’s subpoena, or corroborating the substance of the call. Navarro also submitted a post-hoc letter (written after the district court denied his motion to dismiss) from Trump’s attorney stating that Trump believed Navarro, “as one of his senior advisors, had an obligation to assert executive privilege on his behalf,” but did not state Trump had actually done so for this subpoena. The government, meanwhile, put forth evidence concerning other instances in which Trump had clearly invoked executive privilege in response to congressional subpoenas, drawing a contrast with the lack of evidence supporting such a claim as to the Select Committee’s subpoena of Navarro.
Based on this record, the district court again denied Navarro’s motion to dismiss, holding that, as a matter of law, a valid assertion of executive privilege requires that (1) the “privilege be claimed by the President or an official authorized to speak for the President”; (2) the privilege assertion come after “some level of personal consideration” by the President; and (3) the assertion be “by some affirmative act or conduct” rather than “by mere acquiescence.” The district court also found, as a factual matter, that Navarro failed to present evidence showing that the President or his designee had asserted executive privilege as to the Select Committee’s subpoena. Id. Finally, the court concluded that because there was no evidence Trump had invoked executive privilege, Navarro’s separation-of-powers defense premised on that invocation necessarily failed.
At trial, Navarro was precluded from arguing that he held a good-faith belief executive privilege had been invoked, and the jury was instructed that such a belief was not a defense to the charges of contempt. A jury convicted Navarro on both counts in September 2023.
Navarro appealed the conviction. After full briefing on appeal, and after the D.C. Circuit granted the government’s unopposed request for an extension of time to reconsider its position given the incoming second Trump administration, the government was directed to report whether it “wished to continue to prosecute this criminal appeal or to have it dismissed.” The government did not move to dismiss the appeal or to file a different brief, but instead moved only to strike its own brief on the ground “that it is no longer taking the same position as the prior administration in this case,” leaving the court to decide the appeal with Navarro as the sole participating party.
Opinion
Jurisdictional Separation of Powers Arguments
Navarro argued on appeal that separation of powers principles precluded a court from adjudicating what is required to invoke executive privilege, and when such criteria are met. For the courts to prescribe how an executive invokes privilege, Navarro argued, would infringe upon the President’s Article II authority.
The D.C. Circuit panel flatly rejected this unusual argument, finding that “there is no relevant daylight between deciding whether privilege has been invoked (which our precedent allows) and how its invocation can be evidenced.” The court noted that the D.C. Circuit routinely assesses not only whether and how commonly raised privileges apply in various cases, but also the criteria required to invoke such privileges. Moreover, forcing courts “to accept at face value mere claims of executive privilege put forth by any employee with some asserted presidential advisory role” would both impede courts from discharging their own constitutional functions, and risk courts “mistakenly apply[ing] the privilege against the will of the President,” potentially forcing courts to “step[] into the Executive’s domain.” The panel observed that it was not only consistent with, but necessary to preserve, separation of powers for courts to adjudicate whether executive privilege had been properly invoked: “A court, in other words, cannot simply take a defendant at his word that the President invoked privilege because doing so would impermissibly tangle separation-of-powers lines.”
The panel also rejected Navarro’s argument that the constitutionally mandated accommodations process precluded the court from stepping in to adjudicate the dispute between the political branches of government. The panel reaffirmed that “efforts at accommodation are the preferred approach in interbranch disputes,” but found there simply was no interbranch dispute in this case. Because Biden explicitly declined to invoke executive privilege, while Trump failed to invoke executive privilege, there was no clash between the legislative and executive branches with respect to Navarro’s noncompliance with the subpoena. Further underscoring the lack of an interbranch dispute was the fact that during the appeal, the government once again under a Trump Presidency was explicitly asked whether it sought to reverse its posture, and it opted not to do so, choosing only to strike its brief.
Executive Privilege
As discussed above, in finding that executive privilege had not been asserted in Navarro’s case, the district court had ruled that the privilege (1) must be claimed by the President or an official authorized by the President to claim it, (2) after some level of personal consideration by the President, and (3) by some affirmative act or conduct by the President or his designee. The D.C. Circuit panel, led by Judge Millet and joined by Judges Pillard and Childs, affirmed the first criterion articulated by the district court, holding that “the authority to invoke executive privilege rests with a president or his designee.” As such, executive privilege may be invoked only by a current or former President, or “an official authorized by the President” to invoke the privilege. In so holding, the court resolved an issue it had previously left open in dicta in Dellums v. Powell, 561 F.2d 242 (D.C. Cir. 1977), and reaffirmed the foundational principle that “executive privilege belongs to the Presidency” and no one else.
The court explained that this procedural requirement is a necessary safeguard against potential abuse and misconstruction of Article II authorities: “Resting the power to invoke the privilege in the hands of the President, whose functioning that confidentiality protects, keeps the privilege within its proper constitutional bounds.” Moreover, because the assertion of executive privilege, particularly in the context of an interbranch dispute, represents “an extraordinary assertion of power” that “can set the coequal branches on a collision course”, “[i]t follows from the simultaneous delicacy and potency of such invocations that the power to assert the privilege must reside with the politically accountable and constitutionally empowered President.” On this view, permitting executive privilege to be invoked by implication or automatically would risk aggrandizing the executive’s Article II authorities and render application of the privilege inconsistent with its underlying constitutional purpose.
The panel also clarified that its reference to executive privilege as a “presumptive” protection in Dellums “denotes only that the privilege is qualified and may be overcome — not that it springs into effect immediately and spontaneously regardless of what a President might choose.”
The panel separately found that the district court did not clearly err in its factual finding that Trump did not invoke executive privilege as to the Select Committee’s subpoena. In this case, Navarro purported to assert the privilege unilaterally, within three minutes of receiving email outreach from the Select Committee and before even seeing the substance of the subpoena, let alone discussing the substance with Trump. Navarro presented no evidence that Trump invoked executive privilege, either during a subsequent phone call with Trump described by Navarro in testimony, or through corroborating documents. Moreover, the documentary record, including grand jury testimony from aides and attorneys to Trump, failed to confirm the invocation of executive privilege, in stark contrast to a different, contemporaneous subpoena for which Trump’s team had generated a paper trail clearly invoking privilege.
The court did not rule upon the second and third criteria that the district court found were necessary to invoke executive privilege. (That’s because the panel found the first element was required, and Navarro had not met it.) It thus remains an open question whether (i) a President must engage in “some level of personal consideration,” and (ii) there must be “some affirmative act or conduct” by the President or his designee, in order for executive privilege to be considered invoked in the D.C. Circuit.
Materials Not Subject to Executive Privilege
The court also affirmed the district court’s dismissal on the independent basis that some of the materials sought “could not have been subject to executive privilege at all.” The court reiterated that executive privilege “only applies to communications that presidential advisers and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters,” and that it does not apply to subpoenas for “private information, which by definition do not implicate sensitive Executive Branch deliberations,” citing In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997) and Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032-2033 (2020). The court noted that “[m]uch if not all of the information sought by the Select Committee’s subpoena targeted information falling outside of Navarro’s official bailiwick,” as it “principally concerned Navarro’s public writings and communications about the Navarro Report and Green Bay Sweep made after he returned to private life.” Indeed, Navarro had conceded in the record that the subpoena sought “non-official/personal documents.”
Good-Faith Defense to Contempt of Congress Charges
Importantly, the D.C. Circuit also rejected Navarro’s challenge to the district court’s exclusion of a “good-faith mistaken belief” defense against his contempt of Congress charges. Reviewing the district court’s ruling de novo, the panel found that the position advanced by Navarro was squarely foreclosed by binding Supreme Court precedent, citing Sinclair v. United States, 279 U.S. 263 (1929), United States v. Bryan, 339 U.S. 323 (1950), Quinn v. United States, 349 U.S. 155 (1955), and Watkins v. United States, 354 U.S. 178 (1957) in particular. The panel also found that D.C. Circuit precedent foreclosed Navarro’s interpretation of Section 192, citing Licavoli v. United States, 294 F.2d 207 (D.C. Cir. 1961) and United States v. Bannon, 101 F.4th 16 (D.C. Cir. 2024). The panel reaffirmed this precedent in holding that “a defendant acts willfully within the meaning of Section 192 when he deliberately and intentionally defaults on a subpoena, even if he subjectively and mistakenly believed his default was lawful.” As such, a “deliberate and intentional refusal” to comply with the subpoena’s demands, even if premised on a mistaken belief that executive privilege has been invoked, is “sufficient to constitute guilt” of contempt of Congress.
The panel also rejected Navarro’s attempt to cabin Licavoli and Bannon to situations in which a defendant raises an advice-of-counsel defense. The court found that “[t]he constitutional underpinnings of executive privilege do not take it outside binding precedent,” noting that “Section 192 authorizes criminal liability for good-faith but mistaken assertions of unconstitutionality.” The panel also noted that while Bannon technically entailed an advice of counsel defense, the advice relied upon “‘was that then-former President Trump had asserted executive privilege’ that prevented his compliance with the subpoena.” This rendered “the gap between this case and Bannon … vanishingly small.”
The panel also noted at the outset that “Navarro has not argued to this court that he ever had a good-faith belief that the subpoenaed materials he created as a private citizen, published to the world, and spoke about publicly were subject to executive privilege.” The fact that Navarro apparently failed to pursue the factual dimension of this defense may color how other courts view the panel’s holding on the “good-faith mistaken belief” issue, or how this holding is viewed should the decision be appealed. For example, it is plausible that other courts or a court on appeal would find that the panel need not have reached this issue, being able to dispose of this claim based on Navarro’s failure to argue he in fact held a good-faith belief that noncompliance was excused.
Major Takeaways
Executive Privilege
Navarro II’s holding on executive privilege clarifies that the President, or their authorized representative, must take clear accountability for invocations of executive privilege. By clarifying that executive privilege will not be implied or assumed, or even be presumed where circumstances suggest confidentiality interests of some sort, Navarro II forces presidents or their authorized representative to firmly put their name behind refusals to comply with congressional subpoenas. As the panel articulated, this development is consistent with maximizing accountability of those elected to political office, and prohibits presidents and those in their orbit from relying on vague or amorphous suggestions of privilege that fall short of a formal invocation.
The principle that the President alone holds executive privilege and must take accountability for any assertion is consistent with common practice in interbranch oversight disputes. As one of us has previously explained, the executive branch typically views a congressional request as the opening salvo in an iterative negotiation process between co-equal branches of government — a process in which equality and competing interests frame the dispute. The volume of congressional oversight requests, as well as their wide variety in terms of subject matter, sensitivity, and proximity to the President, render it impractical and inadvisable for the Office of the President to be consulted in connection with every request. Executive branch officials also typically recognize, as the Navarro II panel articulated, that executive privilege represents “an extraordinary assertion of power that can set the coequal branches on a collision course.” For this reason, it is rare to see executive branch officials immediately invoke executive privilege, and instead we often see executive branch officials citing “confidentiality interests.” Executive branch officials recognize that the Office — and now, as clarified by Navarro II, the “President or his designee” — must be the one to make executive privilege calls; rogue agency personnel or “any employee with some asserted presidential advisory role” cannot do so. Meanwhile, because Congress takes a sweeping view of its oversight authorities as limited only by legitimate legislative purpose and certain privileges, congressional committees interpret anything short of a formal invocation of executive privilege as not meaningfully limiting compliance obligations. For this reason, we tend to see congressional staff repeatedly seeking clarification from executive branch staff as to the nature of their objections and withholding of information, and pressing for compliance in the absence of a formal invocation of executive privilege.
The Navarro II ruling is also consistent with the iterative nature of the constitutionally mandated accommodations process, and the principle of allowing the political branches to work out their differences before seeking judicial intervention. Standard practice among executive branch staff has been to endeavor to accommodate oversight requests as much as possible, without formally escalating issues to the presidential level. Only the most sensitive issues, closest to the President and their advisors, should be allowed to mature to the point where they become a presidential level issue requiring a privilege call. In the vast majority of cases, the political branches will be able to arrive at an accommodation that largely satisfies the most important institutional interests of each branch. Of course, Navarro did not follow this typical process, instead immediately claiming “executive privilege” within minutes of receiving the Select Committee’s email informing him that they would seek his testimony and documents and asking whether he would accept email service of a subpoena. Navarro’s premature and underbaked invocation of executive privilege significantly undercut his position when it came time for the courts to weigh in, with the panel noting “nothing in the separation of powers requires rewarding that behavior.”
Navarro II also leaves unanswered several questions with respect to the invocation of executive privilege. While it is clear that executive privilege must be “claimed by the President (current or former) or an official authorized by the President to claim it,” it remains unclear whether this criterion is sufficient for the invocation of executive privilege. As noted above, the D.C. Circuit panel did not reach the questions of whether the invocation of executive privilege requires that (i) the President engage in “some level of personal consideration,” and (ii) there be “some affirmative act or conduct” by the President or his designee. It thus remains to be seen whether additional criteria are required for a court to find executive privilege has been properly invoked.
The Circuit opinion also leaves unanswered what might happen in the event a current and former President disagree about the invocation of executive privilege, and what degree of comity a sitting President owes a prior President. The single necessary criterion articulated in Navarro II provides that either the “current or former” President may invoke executive privilege, assuming that a current President’s privilege determination would not conflict with that of a prior President. However, as we have seen in recent years, there are many instances in which a sitting President and a prior President have disagreed as to specific executive privilege calls. In this case, neither the current nor former President at the time invoked executive privilege, allowing the panel to summarily dispose of Navarro’s appeal. However, if then-current President Biden had expressed the White House Office’s view that executive privilege did not apply to the relevant communications, or opted to affirmatively waive the privilege, while then-former President Trump had sought to assert executive privilege over the relevant communications, it is unclear how such a claim of privilege would be treated by the D.C. Circuit. As discussed in a prior article, the issue of which president’s word is final when it comes to asserting executive privilege has been partially, but not conclusively, litigated, and remains a fascinating issue to watch in an era of decreasing comity between different presidential administrations.
Willfulness Under Section 192
Navarro II also makes clear that the holding of Bannon is not limited to reliance-on-counsel cases, and that “willfulness” under Section 192 requires only a deliberate and intentional refusal to comply with a subpoena, not a correct understanding of the law or even the facts. A defendant’s subjective, sincere, belief that noncompliance is legally justified is not a defense to a Section 192 charge, even when that defendant believed compliance would have such serious repercussions as violating separation of powers or executive privilege.
This holding may have the effect of significantly raising the stakes of challenging congressional subpoenas. By removing the potential for subpoenaed targets to claim a good-faith belief that compliance was excused, those targets will be forced, in some circumstances, to either comply or risk criminal contempt in the event their legal arguments against the validity of the subpoena fail. By making liability under Section 192 one step more immediate, those faced with congressional subpoenas are sure to think more carefully before opting not to comply.
The ruling also poses particularly acute challenges for targets of congressional investigations when put in the context of the Speech or Debate immunity that congressional committees enjoy. Because the U.S. Constitution’s Speech or Debate clause generally precludes one from proactively suing congressional committees to quash or judicially narrow subpoenas, see U.S. Const. art. I, § 6, cl. 1, in order to obtain judicial review, subpoenaed entities must generally refuse to comply, then raise any arguments as defenses in a civil or criminal contempt proceeding. This mechanism already presents a thin and deficient view of due process as compared to other forums, with many subpoenaed entities understandably opting to comply even where a subpoena appears legally invalid, rather than risk a criminal contempt conviction or the reputational and other costs of civil proceedings. By removing the opportunity to rely on a good-faith but mistaken-belief defense in criminal contempt of Congress proceedings, the D.C. Circuit panel further stacked the deck in favor of congressional committees, leaving targets with an even less viable mechanism to challenge congressional subpoenas that may have obvious, though not legally certain, deficiencies.
Imposing strict liability for noncompliance with congressional subpoenas, in a setting where the target may not challenge the subpoena’s validity until a criminal contempt proceeding or civil litigation has begun, also allows congressional committees to force compliance through pressure rather than through legally sufficient oversight mechanisms, setting up a structure that is ripe for abuse.
Dicta Regarding Common Law Privileges
While much of the opinion will have the effect of further stacking the deck in favor of congressional committees’ leverage over targets of investigations, the court did note in dicta that “[r]ecipients of congressional subpoenas retain common law and constitutional privileges against governmental demands for the disclosure of requested information,” citing Mazars, 140 S. Ct. at 2032. As some have pointed out, this statement carries enormous significance for recipients of congressional subpoenas. The precise nature and scope of privileges that congressional committees must honor has not been clearly or conclusively adjudicated, leaving this open legal question one more variable to color negotiations between congressional committees and those they investigate. One rare peek into judicial thinking on the issue came in 2020, when the Supreme Court observed in dicta in Mazars that recipients of congressional subpoenas “have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications.” As one of us has previously written, this statement ran counter to Congress’ long-standing view that it is not bound to honor common-law privilege assertions. While many congressional committees continued to hold that position following Mazars, this piece of Supreme Court dicta presented targets of congressional investigations with a powerful piece of leverage in negotiations with congressional staff regarding oversight requests. Now, Navarro II’s adoption — and expansion — of this in dicta will provide further support to recipients of congressional oversight requests who seek to vindicate common law privileges, such as attorney-client privilege.
