During appeal process, Mr. Navarro argued in court filings that the
DOJ lacked authority to demand immediate production of records.
Former White House trade adviser Peter Navarro, who’s serving time in prison for refusing to comply with a Congressional subpoena, has lost a separate legal bid to prevent having to turn over purported presidential records from his personal email account.
Mr. Navarro had refused to produce the records without assurance that they wouldn’t be used against him in his separate criminal prosecution for contempt of Congress for defying the subpoena lawmakers investigating the Jan. 6 Capitol breach.
“The United States has been entirely unable to identify a single statutory section which evinces the Congressional that such broad power are at their disposal,” he wrote in the March 26, 2023 reply in support of his motion for stay pending appeal.
“The reason for that is simple: Congress never intended to give the United States such broad powers in the PRA,” Mr. Navarro continued. “Congress wrote no sections which would establish that the United States must have those documents forthwith without determining whether such compelled production would damage the rights of the creator or recipient of such records.”
However, the appeals court rejected Mr. Navarro’s arguments, calling them “without merit under clear, longstanding precedent.”
“If Navarro were correct, the statute would leave the United States with no ability to retrieve Presidential records from employees if they refuse to return Presidential records after being disciplined or exiting federal employment,” the three-judge panel wrote in the order.
A request for comment on the ruling sent to Mr. Navarro’s attorney was not immediately returned.
Background
During his four years with the Trump administration, while Mr. Navarro was a covered employee under the PRA, he used at least one non-official email account to send and receive messages.
Some of the messages he sent constituted presidential records and he failed to copy those messages to his official account, contrary to Section 2209(a) of the PRA, per the April 1 appelate court order. The law states that any presidential correspondence must be forwarded to an official account so that it can be archived for preservation.
In December 2021, after NARA discovered that Mr. Navarro had retained some presidential records on his personal email account, it asked him to provide it with the records.
When Mr. Navarro didn’t respond, the DOJ got involved, requesting that he turn over the records, leading him to engage with NARA and the DOJ to settle on a process for determining which records were presidential and which were personal.
“On July 22, 2022, Navarro’s counsel represented that NARA’s search parameters had generated 1,700 documents, about 200 to 250 of which counsel identified as Presidential records,” the April 1 order reads.
“Navarro, through counsel, refused to produce the records without a guarantee that the records would not be used in Navarro’s unrelated criminal prosecution for contempt of Congress.”
Legal Fight
The DOJ then sued Mr. Navarro in D.C. federal court in a bid to force him to hand over the records under the District of Columbia’s so-called “replevin” statute, which allows a plaintiff to recover personal property to which they’re entitled, and that is alleged to have been wrongfully taken or retained by the defendant.
“Enforcement of the statute by the government to assert its ownership rights militates that it must be free to utilize those legal processes available to it whether or not they are expressly provided for by statute,” she wrote.
“In this instance, the United States correctly invokes the Court’s judicial power to require the return of the wrongfully retained emails,” she added.
Mr. Navarro appealed, filing an emergency motion for stay pending appeal, which was denied, with the district court proceeding to oversee the process of Mr. Navarro’s production of the relevant documents. This process remains ongoing and disputed, with a series of filings and counter-filings leading to a Feb. 20, 2024, order threatening Mr. Navarro with contempt of court if he failed to turn over more records.
The appeals court reviewed the district court’s grant of summary judgment and denial of Mr. Navarro’s motion to dismiss.
Much like Judge Kollar-Kotelly, the appeals court found that Mr. Navarro’s arguments were unfounded.
“For Navarro to previal, he would need to show that the PRA affirmatively abrogates the United States’ general authority to pursue common law remedies,” the three-judge panel wrote in the April 1 order.
“Navarro cannot do so,” the judges concluded, affirming the district court’s decision that requires Mr. Navarro to produce the documents.
