At Monday’s hearing, Navarro took the stand and described his communications with Trump and his aides about two congressional subpoenas he received: one from the Jan. 6 panel and another from a separate congressional committee investigating the coronavirus pandemic.
Navarro said Trump communicated to 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 lawyer, Stanley Woodward, asked Navarro if he went to a Jan. 6 select committee deposition.
“I was directed by the president not to,” Navarro replied.
Mehta’s decision is likely to turn on whether he buys Navarro’s description of his conversations with Trump, which were not backed by any documents or written confirmation that have accompanied other privilege assertions that Trump has made.
John Crabb Jr., a prosecutor handling the case, pressed that point in his questioning of Navarro.
After the questioning, Woodward conceded that they wished they had something in writing from Trump stating explicitly that he had invoked executive privilege to shield the former trade adviser from testifying to the Jan. 6 panel.
The panel wanted to question Navarro about his work with Trump ally Steve Bannon on a strategy for members of Congress to mount numerous and lengthy objections to Joe Biden’s electoral votes during the Jan. 6, 2021, session of Congress. Navarro has indicated that Trump himself approved of the strategy.
Navarro also published reports making discredited allegations of widespread fraud in the 2020 election. Trump touted one of those reports in a Dec. 19, 2020, tweet in which he urged supporters to descend on Washington D.C., for his “stop the steal” rally.
On Monday, Mehta, an appointee of Barack Obama, pressed Woodward on why he didn’t have any language from the former president invoking privilege.
“I still don’t know what the president said,” Mehta said, adding he had no “inkling” of Trump’s words.
“It doesn’t matter,” Woodward replied.
“It has to matter,” Mehta said.
On Monday, Woodward cited grand jury testimony from Justin Clark, who was deputy campaign manager for Trump’s 2020 campaign and also advised him after his presidency. Portions of Clark’s grand jury testimony would be admitted as evidence for Navarro’s upcoming trial.
According to Woodward, Clark testified that he didn’t think Navarro needed a written invocation of executive privilege because he had his own direct line of communication to Trump.
Navarro also testified about a separate conversation he said he had with Trump at his Mar-a-Lago club in April of 2022 after lawmakers voted to hold Navarro in contempt. According to Navarro, Trump expressed second thoughts about his decision to block Navarro from testifying.
“There was no question after that conversation that privilege had been invoked from the get-go,” Navarro testified. “None.”
Mehta, however, seemed unimpressed by Navarro’s description of the Mar-a-Lago meeting.
“That’s pretty weak sauce, it seems to me,” he said.
Woodward argued that Trump’s intent, rather than his specific language, dictated the invocation of the privilege. And he said that allowing Navarro to face criminal charges because he didn’t have a direct quote from Trump did a disservice to the doctrine of separation of powers.
Mehta also quizzed the prosecution. When Crabb pointed out that there was no evidence Trump looked at the Jan. 6 subpoena Navarro received, Mehta asked whether he would have had to lay eyes on the document to invoke privilege.
Crabb replied that Trump wouldn’t have had to see the document himself. But, he added, it wouldn’t be appropriate for him to invoke executive privilege just because he thought the congressional probe was a witch hunt.
That argument didn’t seem persuasive to the judge. He said shielding presidents from embarrassment is a key feature of executive privilege, since it protects frank conversations between presidents and their advisers. Mehta suggested it wasn’t appropriate to question a former president’s motives when deciding how executive privilege worked.
“It doesn’t become invalid because the president thinks this is a witch hunt,” he said.
Crabb, however, said that reasoning matters when former presidents invoke executive privilege. He said the president must have some knowledge of the material being sought and not just of the fact that his political foes were seeking it.
“We don’t believe it’s true that the president can invoke executive privilege willy-nilly,” he said.
At the end of the hearing, Mehta said he would give the issues some thought and rule at a pre-trial conference on Wednesday. If the case heads to trial and Navarro is convicted, he could face up to two years in prison.