At Monday’s hearing, Navarro took the stand, describing his communications with Trump and his aides regarding two congressional subpoenas he received: one from the January 6 panel and another from a separate congressional committee investigating the coronavirus pandemic.
Navarro said Trump informed him that he had invoked executive privilege, a legal doctrine that allows the president to withhold certain confidential communications from the other branches of government. Navarro’s attorney, Stanley Woodward, asked Navarro if he was going to a select committee deposition on Jan. 6.
“I was instructed by the president not to do that,” Navarro replied.
Mehta’s decision will likely depend on whether he buys Navarro’s description of his conversations with Trump, which were not supported by documents or written confirmations accompanied by other claims of privilege Trump has made.
John Crabb Jr., a prosecutor who handled the case, emphasized that point in his questioning of Navarro.
After questioning, Woodward admitted that they wished they had something in writing from Trump that explicitly stated that he had invoked executive branch privilege to shield the former trade adviser from testimony before the January 6 panel.
The panel wanted to question Navarro about his work with Trump ally Steve Bannon on a strategy for members of Congress to raise numerous and lengthy objections to Joe Biden’s election votes during the January 6, 2021 congressional session. Navarro has indicated that Trump himself approved the strategy.
Navarro also released reports making discredited allegations of widespread fraud in the 2020 election. Trump touted one of those reports in a tweet dated December 19, 2020, urging his supporters to descend on Washington DC for his “stop the steal” rally.
On Monday, Mehta, a Barack Obama appointee, pressed Woodward as to why he didn’t have any of the former president’s language invoking privilege.
“I still don’t know what the president said,” Mehta said, adding that he had no “idea” of Trump’s words.
“It doesn’t matter,” Woodward replied.
“It should matter,” Mehta said.
On Monday, Woodward cited the grand jury testimony of Justin Clark, who was deputy campaign manager for Trump’s 2020 campaign and also advised him after his presidency. Parts of Clark’s grand jury testimony would be admitted as evidence for Navarro’s upcoming trial.
According to Woodward, Clark testified that he did not think Navarro needed a written executive privilege appeal because he had his own direct line of communication with Trump.
Navarro also testified about a separate conversation he said he had with Trump at his Mar-a-Lago club in April 2022, after lawmakers voted to despise Navarro. According to Navarro, Trump expressed doubts about his decision to bar Navarro from testifying.
“After that conversation, there was no doubt that this privilege had been invoked from the beginning,” Navarro testified. “No.”
Mehta, however, seemed unimpressed with Navarro’s description of the meeting at Mar-a-Lago.
“That’s a pretty weak sauce, I think,” he said.
Woodward argued that Trump’s intent, not his particular use of language, dictated the privilege appeal. And he said that the fact that Navarro faced criminal charges for not having a direct quote from Trump did the separation of powers doctrine a disservice.
Mehta also questioned the prosecution. When Crabb pointed out that there was no evidence that Trump had looked at the Jan. 6 subpoena Navarro received, Mehta asked if he should have seen the document to invoke privileges.
Crabb replied that Trump should not have seen the document himself. But, he added, it wouldn’t be appropriate for him to invoke executive privilege just because he thought the congressional investigation was a witch hunt.
This argument did not seem convincing to the court. He said protecting presidents from embarrassment is an important feature of executive privilege because it protects candid conversations between presidents and their advisers. Mehta suggested it was not appropriate to question a former president’s motives in determining how executive privilege worked.
“It will not be invalidated because the president thinks this is a witch hunt,” he said.
Crabb said, however, that reasoning matters when former presidents invoke executive privilege. He said the president should have some knowledge of the material sought and not just the fact that his political enemies were looking for it.
“We do not believe it is true that the president can knowingly invoke executive privilege,” he said.
At the conclusion of the hearing, Mehta said he would consider and rule on the issues at a pre-trial conference on Wednesday. If the case goes to court and Navarro is convicted, he could face up to two years in prison.