A federal judge on Friday delayed the contempt of Congress trial for former Donald Trump adviser Peter Navarro, likely for months, to allow for additional pre-trial debate over the role executive privilege could play when the case goes to a jury.
Over the course of a nearly two-hour hearing Friday, US District Judge Amit Mehta grilled Justice Department prosecutors on the position the department has taken, in previous internal Office of Legal Counsel opinions, that close aides to a president can be immune from congressional subpoenas.
The trial had been scheduled to begin on Monday.
With the questions Mehta is raising about executive privilege, the Justice Department has been put on the spot to clarify its murky interpretations about the scope of presidential immunity.
During the Trump administration and in prior administrations, DOJ has issued internal guidance describing a sweeping “absolute immunity” that protects some presidential aides from having to even show up when Congress subpoenas them for testimony – though whether such immunity exists has been rebuffed in court.
On Friday, prosecutors Elizabeth Aloi and John Crabb tried to skirt around Mehta’s hypotheticals about whether such an immunity would have applied to Navarro had he had been given a directive, as the time House January 6 committee demanded his participation in its probe, that Trump was invoking privilege in response to the subpoena.
Mehta noted to the prosecutors that they were in a criminal context and said that “it seems to me you ought to have some pretty clear lines before you prosecute someone.”
“You can’t ask someone to parse these OLC opinions the way that you’re suggesting,” the judge later said.
Mehta had opened the door to the possibility that Navarro could present evidence at trial – potentially taking the stand – that he had been told by Trump that the former president was invoking executive privilege over his testimony to the House January 6 committee.
So far, Navarro has offered no evidence that Trump made a such an invocation when he was subpoenaed for documents and testimony by the now defunct House January 6 select committee.
Federal prosecutors bristled at the idea that Navarro should still be allowed to present such evidence, arguing that it doesn’t exist in the first place and that if it did, it would not be up to the jury to decide whether such invocation would have shielded Navarro from the subpoena.
Mehta ultimately decided that the issue raised legal questions that needed to be decided before trial, so he postponed its Monday start date.
The judge did not schedule a new date for the trial, and instead set a briefing schedule on the privilege questions that will extend through the end of March.
Even as they welcomed the delay and the opportunity for more briefing, Navarro’s lawyers were vague on what kind of evidence they would seek to present if given the chance to raise the defense that there had been an invocation of privilege.
Navarro attorney Stan Woodward stressed that he could not commit that Navarro would testify at trial if such defense was allowed, given the risks that would come with a cross-examination from prosecutors. At one point Woodward quipped that among the many issues his legal team would have to overcome with Navarro testifying would be “calling my malpractice carrier before I put Navarro on the stand.”
This story has been updated with additional details.