Peter Navarro Had No Privileged Communications with Donald Trump’s Lawyer
Peter Navarro has been indicted.
I’m less excited about this indictment than virtually everyone else, because I know how easily Navarro will be able to stall a prosecution, particularly given that — unlike Steve Bannon — he was a high ranking government official when the events in question occurred (though also one who wrote a book about those events). I also know that the ultimate punishment for this is just a month in jail — not really the kind of punishment I’d like to see architects of a coup attempt face.
That said, there’s a detail about the indictment that does excite me.
Navarro made all the same empty excuses that Bannon did to avoid testifying, basically invoking Executive Privilege without requiring Trump invoke privilege on a question by question basis.
Oh, and also, he had already written a book about the issue.
In the case of Bannon, though, those discussions about invoking privilege to cover up his actions on January 6 were done through a lawyer, Robert Costello. Any communications between Costello and Trump’s lawyer will be privileged.
Navarro, however, represented himself. So the content of his communications with Trump’s lawyer, Justin Clark, will not be privileged. So the evidence against Navarro may quickly get more interesting than that against Bannon.
That’s the kind of thing that excites me.
“Navarro, however, represented himself. So the content of his communications with Trump’s lawyer, Justin Clark, will not be privileged.”
That’s interesting. One wonders if Navarro was under the impression he was privileged? Or just arrogance?
So conversations between my lawyer and someone else’s lawyer are (potentially) privileged, but were I to be representing myself pro se, my conversations with someone else’s lawyer would not be?
Look, you can figure this out on your own with out trashing this thread with questions you could look up with teh Google.
https://www.law.cornell.edu/wex/attorney-client_privilege
Bring a better game, Johnson.
The Cornell Law article doesn’t actually address Scott Johson’s question, which concerns communications between two different counsel representing two different persons, not communications between an individual attorney and an individual client (or potential client). So his question is really alongs these lines: “If a privilege exists for communications between retained counsel for different parties, why does a similar privilege not exist for comunications between a self-representing party (i.e., a party acting acting as his or her own attorney) and the attorney for an opposing party?”
The implications of “Any communications between [Bannon lawyer Robert] Costello and Trump’s lawyer will be privileged. Navarro, however, represented himself. So the content of his communications with Trump’s lawyer, Justin Clark, will not be privileged” are (1) there is a privilege for communications between lawyers representing different persons, and (2) the privilege does not apply when one of the persons is pro se. Like Johnson, I’m puzzled (and troubled) by that seeming distinction, and I wonder whether it’s true.
I no longer have access to Westlaw or Lexis, so I’m stuck with Johnson’s sources. I’ve run several searches in both standard Google and Google Scholar for court decisions [https://scholar.google.com/scholar_courts?hl=en&as_sdt=0,14]. If the answer regarding this distinction is there, it’s buried deeper than I’ve been able to find, and I’ve written a book about the innards of computer-asisted legal research. I still don’t know whether that distinction is true.
There are certain circumstances in which the attorney-client privilege can apply, by extension or analogy, to communications between attorneys representing different persons (e.g., litigants presenting a common claim or defense — a situation the Cornell Law article does not address, even by implication). Navarro seems to be trying to position himself in that relationship to Trump so that his communications with Trump’s lawyer would be seen as akin to those between two lawyers representing parties with a common claim or defense. I think it’s a stretch, but if you’re in Navarro’s situation, you probably roll the dice.
Look, Congress has already had to do the legwork on claims of privilege. Their research service summarizes the body of knowledge available.
Executive Privilege and Presidential Communications: Judicial Principles (May 2022)
https://crsreports.congress.gov/product/pdf/R/R47102
Legal Sidebar: Executive Privilege and the January 6 Investigations (Sep 2021)
https://crsreports.congress.gov/product/pdf/LSB/LSB10643
There’s also a report on the persons outside the executive office as well though this is more pertinent to Bannon than Navarro.
Executive Privilege and Individuals outside the Executive Branch (Oct 2019)
https://crsreports.congress.gov/product/pdf/IN/IN11177
What you need to ask yourself is whether any of the communications and actions taken were 1) part of the function and operation of the executive branch or related to Trump’s re-election campaign, because the latter has no privilege; 2) whether Trump’s attorney acted as a government employee or a campaign employee; 3) whether the communications and acts being investigated were in the furtherance of a crime.
The House J6 Committee is investigating crimes about which they need to address the legislative failures which failed to prevent the crimes, all of which is part of Congressional oversight of the executive branch. Just as Congress investigated Nixon’s abuse of office and subpoenaed his tapes, they are demanding testimony and evidence which does not have absolute immunity under executive privilege. You’d do well to revisit United States v Nixon; if you’re old enough to yap about the Warren Court, you’re old enough to remember the 18-minute gap and the eventual unanimous SCOTUS decision.
Navarro’s gambled when he needed insurance — that’s just plain stupid. He looks like a privileged ass who thinks he’s above the law.
As for Scott Johnson: he has a nasty habit of cluttering threads with “just asking questions” when he could have looked up all the information I just spelled out here. For that matter, so could you, it’s all publicly available on the internet and a former police officer and retired lawyer should be able to find it in within a couple dozen key strokes. Try harder. We don’t have time for this.
The text of Marcy’s post that set the context for my comment is not about whether a valid claim of executive privilege exists, but that Navarro didn’t use a lawyer when he communicated with Trump’s lawyer and therefore the communication with Trump’s lawyer is not privileged:
“Navarro made all the same empty excuses that Bannon did to avoid testifying, basically invoking Executive Privilege without requiring Trump invoke privilege on a question by question basis.
“. . . .
“In the case of Bannon, though, those discussions about invoking privilege to cover up his actions on January 6 were done through a lawyer, Robert Costello. Any communications between Costello and Trump’s lawyer will be privileged.
“Navarro, however, represented himself. So the content of his communications with Trump’s lawyer, Justin Clark, will not be privileged. . . .”
Regardless of whether Scott Johnson is a Tucker Carlson “just asking questions” troll, I had the same question about Marcy’s assertion regarding the attorney-communication privilege before I read Johnson’s. As Marcy wrote (and I agree), “Navarro made all the same empty excuses that Bannon did to avoid testifying.” But that has nothing to do with distinguishing a possible privilege for Bannon’s communications with Trump’s lawyer from a possibly nonexistent privilege for Navarro’s communications with Trump’s lawyer.
The CRS reports you cite deal with executive privilege, not privilege for communications between attorneys representing different persons or privilege for communications between an attorney representing a party and a person proceeding pro se. But even for someone looking for information about executive privilege (which I was not), how many people actually know about Congressional Research Service reports? You do, I do (contrary to what you apparently think), probably most regular readers of this site do. But most people? Not at all likely.
An exact-phrase search in Google for “executive privilege” (perhaps the second-most likely Google search for most people) returns “about 2,170,000 results” — and no CRS reports in the first 20 pages of results. (The most likely Google search for most people would be a plain ol’ non-advanced search for executive privilege, which returns “about 104,000,000 results.”) The fact that CRS information is public doesn’t mean anything for most people because they won’t know how to refine their search to find CRS reports. For the subset of people who would know about CRS and would think to add the exact phrase “Congressional Research Service” to the “executive privilege” exact-phrase search, Google would return “about 10,400 results,” with CRS reports (including reports republished by the Federation of American Scientists) dominating the first page.
If I’d been looking for information about excutive privilege (again, which I was not), I’d have gone directly to (among other possible sources) the CRS site, searched there, and found the reports you cite (along with many others). But the situation posed by Marcy’s comparison of Bannon’s and Navarro’s circumstances was the import of a privilege for attorney-to-attorney comunications versus a privilege for attorney-to-pro-se communications, not executive privilege itself, and CRS doesn’t offer anything of evident value on privilege for those attorney communications.
Well, that was 496 words of run on bitching and splainin that Rayne did not give you exactly what you think you wanted. Don’t do that. Since you claim to know about all the resources, go use them, and don’t be a snot with us.
Both you and Rayne are being ridiculous here. The executive privilege links, etc. don’t apply to the question, which, regardless of his history, was reasonable.
I think my limited knowledge of attorney-client privilege provides an answer, but, like most other things in the law, it’s not clear and asking three lawyers will produce at least five different answers- and that’s not counting the irrelevant rant about executive privilege.
I’m not going to cite anything because I don’t recall which cases I read touching on these issues, but my recollection is Bannon’s conversations with his attorney are privileged even when his attorney communicates what was said to another party’s attorney. Navarro, representing himself, however, has no attorney-client relationship with the other party’s attorney.
There is nothing ridiculous here. It might would have to be sorted out by a court, but there would not turn out to be much privileged.
“Navarro, representing himself, however, has no attorney-client relationship with the other party’s attorney.”
If it’s this simple nobody should be asking. Stop wasting our time with this crap.
Dude. You’re a lawyer according to your first post here. Go fucking be a lawyer and figure it out.
Arrogance, I think. He says he’s not a lawyer, but he has experience with legal stuff.
He had no experience with epidemiology either, but he thought his experience as an economist was enough to lead the charge on the pandemic.
He said that he had articles that were sometimes printed in law review journals, so that made him qualified to represent himself.
He’s not very bright.
He’s also a complete fraud that invented an “expert” named Ron Varro in his books.
Navarro apparently admitted that he used an anagram of his name to create a fictional man “Ron Vara” whom Navarro called an expert and would quote in his books on China.
It must have been endearing to “John Barron” to hire a man who makes up names for himself.
https://www.washingtonpost.com/politics/2019/10/22/one-important-thing-people-are-missing-about-peter-navarro-ron-vara/
I don’t follow this at all. What privileges are we talking about?
> Bannon, though, those discussions about invoking privilege to cover up his actions on January 6 were done through a lawyer, Robert Costello. Any communications between Costello and Trump’s lawyer will be privileged
How do you figure? I don’t see what privilege would apply to communications between Bannon’s lawyer and Trump’s lawyer unless there was a joint defense arrangement.
> Navarro, however, represented himself. So the content of his communications with Trump’s lawyer, Justin Clark, will not be privileged.
Communications between Navarro and Trump’s lawyer might still be subject to executive privilege.
Biden will not authorize EP for these yokels, so no.
I heard Navarro squeal on Ari Melber’s show last night. I love that squeal !!!
Lock him up !!!
“We spent a lot of time lining up over 100 congressmen, including some senators. It started out perfectly….Gosar and Cruz did exactly what was expected of them. It was a perfect plan. And it all predicated on peace and calm on Capitol Hill. We didn’t even need any protestors, because we had over 100 congressmen committed to it.” — Peter Navarro
Leaves out an essential feature, though: the mob pressure on Pence, who was not intimidated by 100 ordinary congresscritters. They were intimidated by the mob, too, hence the scores of text message to their mob boss, to turn off the mob.
Once Warnock and Ossof were seated, Congress was evenly split, with McConnell retaining the gavel only thanks to a) inertia and b) Pence was still VP and thus the tiebreaking vote was still Republican.
But without Pence around, McConnell lacks a majority.
(This assumes that the incoming Georgia Democrats are seated without incident).
Jon Ossoff was elected to a full term in 2020, while Warnock was elected to fill a partial term and now must face the voters this November.
At most, there will only be one incoming senator from Georgia next January.
Was talking about Jan 2021, in between the new Congressional term starting, and the inauguration of President Biden and VP Harris. Senate was 50-50 after the two GA Dems were sworn in, but Mitch McConnell still held the gavel because Pence was still the Vice-President.
Senate may or may not change control next January, but the Vice-Presidency will not.
Warnock and Ossoff were not sworn in until Jan. 20, 2021.
Still not clear on your point?
Yup.
Weasels will be weasels…lock up all the weasels and let’s have plenty of special elections :D
Peetsy got dem low down, disinherited, privilege-less blues…”And I say oh, whoa, whoa, no honey
It ain’t fair, daddy it ain’t fair what you do,
I see what you’re doin’ to me and you know it ain’t fair.
And I say oh, whoa whoa now baby
It ain’t fair, now, now, now, what you do
I said hon’ it ain’t fair what, hon’ it ain’t fair what you do.
Oh, here you gone today and all I ever wanted to do
Was to love you…”
https://youtu.be/X1zFnyEe3nE
“Everybody knows the dice are loaded,
Everybody rolls with their fingers crossed;
Everybody knows the war is over,
Everybody knows that the good guys lost;
Everybody knows that the fight is fixed
The poor stay poor and the rich get rich
That’s how it goes,
And everybody knows.”
[Leonard Cohen]
Also, I would not be surprised if we get at least one more indictment (maybe Meadows?) next week before the hearings start. :D A boy can dream
Friday afternoon, DOJ stated they would not be indicting Meadows or Scavino on contempt charges.
This may be the closest we ever get to the long-pined-for (dating back to Karl Rove) frog march:
CBS’s Scott McFarlane has a nice Twitter thread on the indictment and arrest.
He included the indictment at the bottom of the thread:
https://storage.courtlistener.com/recap/gov.uscourts.dcd.244001/gov.uscourts.dcd.244001.1.0_1.pdf
If anyone sees a frog march photo of Navarro, pls send link. I will print it out and paste it on my dartboard – well I don’t have a dart board but I might get one just for this.
If he was arrested at the airport, there has to have been *someone* with a cell phone video.
“Yes, mom, I made it to the airport. But the FBI is hauling this guy off right before we’re about to board, and he is *not* happy about it. Take a look . . .”
Marcy’s live tweeting NAVARRO’s court appearance, now, starting here:
https://twitter.com/emptywheel/status/1532798169628688384
2:55 PM · Jun 3, 2022
3:03 PM
3:13 PM
3:14 PM
[harpie: OMG]
3:16 PM
3:18 PM
That “conflicting constitutional interpretation” bit at 3:13 PM is interesting.
It’s always amusing when a pro se dirtbag goes to court and makes various specious assertions of sovereignty, unheard-of-rights, or frivolous allegations of government misconduct which destroy any possible case against him.
Most such kooks, though, are mostly harmless tax resistors, not former Administration officials who were involved in an attempted coup d’etat.
He was NOT pro se, there was an FPD supplied.
Why do I suspect that the poor PD was doing a facepalm during the entire hearing, wishing that he/she was representing some low-level dealer instead, one who knew that the only things that should be said to the judge are “yessir” and “nosir”? (Or ma’am, if the judge happens to be a woman)?
Have a good friend who is a PD in the District, though she mainly represent clients (DUIs and such) in DC Superior Court, not US District court. Thankfully she’s not involved in this mess. :)
The “pro se” is actually his suit in another court, which is already getting shot at by said court.
Yes, I know. But until he obtains a criminal lawyer, he is pro se on that too. The FPD was just for arraignment and release purposes by my understanding.
I love Brandon Fellowes! He definitely would’ve had the sense to shut up in this situation, unlike Mr. Navarro.
3:20 PM
[harpie: did NO one on that plane take a video?]
3:21 PM
They hauled him off a plane?!
I thought Marcy’s “board the play” might have been a typo for “board the plane”?
He says later he was arrested at the door of the plane.
Tattoo: ” Boss, the plane, the plane!”
Richardo M: “Get the golf cart (out of the proud boy storage unit), we have another visitor to Fantasy Island.”
He was on fantasy island long before he got on the plane.
Hopefully, his future will soon include 30 days in the slammer. This may introduce him to reality, but I have my doubts.
https://twitter.com/RobertMaguire_/status/1532811112894410753
3:47 PM · Jun 3, 2022
Heh, nicely done!
3:24 PM
3:26 PM
3:29 PM
Wooooow. What a freaking nut bag. I wonder if he’ll eventually claim insanity.
Nobody gets release conditions without that.
That’s what pisses him off. “I’m not Nobody. I’m special. I’m important. I. Am. Somebody! How dare they treat me like everyone else.”
Frankly I’m surprised he didn’t threaten to hold his breath.
High schadenfreude in this thread.
Any chance Peter Navarro and Rudy Giuliani talk to one another?
Will the Jan 6 committee expose Mike Flynn’s role in the coup?
3:30 PM
Marcy’s thread is just fascinating. I suspect Navarro is both lucky and unlucky that he got Faruqui as the magistrate judge. Lucky because Faruqui doesn’t seem to be arrogant. Unlucky because Faruqui will give Navarro plenty of rope and sit back and see what Navarro does with it.
3:35 PM
3:38 PM
With probable cause, you actually can be subject to drug testing, though don’t see any here.
But did you see him on Ari Melber? That’s a joke. Of course there’s no probable cause for drug testing. It doesn’t piss me off when people get treated fairly. It upsets me that not everyone gets treated fairly by the “justice” system.
Meh, most of my clients are treated fairly. But then, I do not practice in TX.
3:40 PM
3:42 PM
3:43 PM
3:45 PM
MELBER / NAVARRO interview, 6/2/22
https://twitter.com/Acyn/status/1532502158599327744
7:19 PM · Jun 2, 2022
3:48 PM
Lol, what a fucking pussy. My clients face harsher pre-trial release conditions every day. Quit whining Navarro.
Your clients might not have the same, Harvardian, above-the-law arrogance as a former counselor to the president. In TrumpWorld, accepting any consequence for malfeasance without whining to the moon would make Navarro a pussy.
And for a guy from the Ann Arbor of Cambridge, Mass., going pro se and not having a lawyer lined up to back him up or take over the case makes Navarro a hapless if vicious wimp.
Well, and my clients shut the fuck up and do not speak without me telling them to.
Cracks me up that Navarro either never received this sage advice or thinks he’s too smart for it.
3:51 PM
3:55 PM
[harpie: he’s probably already getting lots of calls
from “whoever’s listening in digital land”.]
“Russia, if you’re listening . . .”
In digital land? I’m sure you mean Obama, I mean Gore. Anyway, thanks Clinton!
4:02 PM
4:04 PM
4:05 PM
Marcy has a post up about this:
https://www.emptywheel.net/2022/06/03/breaking-peter-navarro-thinks-hes-better-than-800-other-january-6-defendants/
You are a gem! Thanks!
Harpie, I would like to express my appreciation for your ability to find and post links to every relevant thing on this site. Your work is invaluable to commoners like myself who need help understanding all of this.
Hear hear!
Awwww, shucks! [blushing]
Thank you all!
Her live tweet thread is awesome! ROTFL. OMG it was funny. And I can both picture and hear the Magistrate clicking through the usual end of hearing items (…passport, no drugs, no guns etc.). I added in my head the, “Next case.” Navarro is just another privileged white boy brought into the criminal justice system, a system designed and perfected to protect his exalted position in society. What a punk. And while I accept that this charge won’t yield much jail time, I’m delighted he’s going through the process. Let’s get Trump arraigned too.
Yep. PUNK. That’s the word that describes all of these spoiled rotten vicious brats from Trump all the way down to the Proud Boys.
As a fan of the Ramones, I think that calling them punks is unfair to actual punks
😄
He went away on a summer day
Said he’s going down Nashville way
But he never got there
He never got there
He never got there, they say
The AUSAs took Navarro away
They took him away
Away from me
The AUSAs took Navarro away
They took him away
Away from me
Hey ho, hey ho
Pretrial don’t know
Where Navarro can be
They took him from me
They took him from me
Ring me, ring me, ring me
Up the President
And find out
Where Executive Privilege went
Ring me, ring me, ring me
Up the FBI
And find out if
Navarro’s alive
It’s amazing how much “they are treating me like a common criminal” whining has come from 1/6 participants who found themselves arrested. (Often times, this is code for “they are treating me like a [ethnic slur]”, a happening that they’ve long assumed that white privilege would protect them from, but they assume is just and proper treatment for those lower on the social hierarchy than themselves).
This would be a good time to send thoughts and prayers.
This was enlightening. I had thought Navarro was just a cynical power broker too much Impressed that he had gone to Harvard. Now I see i was wrong: He is a lost soul who finally found his fuehrer and, like Goebbels, will kill all his children, his wife and himself when the curtain falls.
But when trump refuses to pay for his legal bills, then there is a chance he will lash back in his pain.
Welp, confirmed that Garland and DOJ will NOT charge Meadows and Scavino with contempt per the House requests. Absolute dereliction of duty. What a joke.
Yeah, what’s the reasoning behind not prosecuting these lawbreakers? A truly bad joke…and evidence that there is indeed an imperial Presidency in the US, not beholding to the actual laws of the Congress.
Isn’t part of the issue that Meadows and Scavino have a stronger case for executive privilege than Navarro? (Both because they were Chief of Staff and Deputy Chief of Staff while Navarro’s portfolio was COVID and trade and because Navarro by all accounts talked to everyone who would listen about January 6th and then claimed executive privilege when subpeonaed by the committee?)
[Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Mike” or “Michael.” I realize you have somehow not been asked to do this since your first comment in 2018, but with the anticipated influx of new community members this month differentiation is absolutely necessary. Thanks. /~Rayne]
That’s my reading.
First, the executive has to invoke the privilege, narrowly, specifically, and make a strong case for it (see the 4th graf).
Second, the privilege belongs to the executive; Trump is not now the executive. Trump already sued the committee over release of documents; the D.C Circuit Court and the SCOTUS both denied his assertion of privilege. Meadows also produced 2,319 responsive messages which were not restrained by any privilege Trump might have claimed, while holding back +1,000 due to “conflicting privilege claims.” Good luck with either executive or attorney-client privilege if the content is unrelated to lawful executive action or if Trump campaign product.
Third, the current executive has declined to assert executive privilege repeatedly over materials related to the Trump administration requested by the House J6 committee for its investigation.
Fourth, if Navarro either published content related directly to Meadows and/or Scavino in his book or discussed in his numerous interviews, it’s not privileged as the horse is out of the barn. Nor can Navarro claim attorney-client privilege when he’s neither client nor attorney for a client.
Fifth, see crime-fraud exception, and United States v. Nixon, 418 U.S. 683 (1974). Eventually nearly all claims of privilege made by perps involved in conspiracies related to the assault on the Capitol and obstruction of Congress will fail; privilege claims now are only delay tactics.
Right.
I’ve read this post three times; it’s an excellent explainer.
Navarro has always impressed me as being similar to his orange hero and Pillow Guy–uncork him and he just spews words, with no particular relationship with the truth. The only difference is he has a deep, very loud voice to do it with.
His performance in court today, though, makes me wonder if he’s been taking whatever it is that Lin Wood takes.
Poor Little Peter should be glad they arrested him before he got on the plane. I’d have let him board, then arrested him at the front door of the venue where he was supposed to speak, slapped him in cuffs, leg irons, and into the back of an un-air conditioned prison transport van for the ride back to DC. With meal, gas, and rest stops, call it 16 hours or so, just in time to spend the weekend in the municipal lockup with the other common criminals until court on Monday. But maybe I’m just a vindictive bastard when people try to burn my country down.