Former Trump trade advisor Peter Navarro’s four-month jail sentence for his contempt of Congress conviction lacks a clear historical parallel.
Navarro was sentenced last week to four months in jail and fined $9,500 for failing to comply with a Jan. 6 select committee subpoena, which he refused out of a belief that former President Donald Trump had invoked executive privilege. Aside from former White House advisor Steve Bannon’s four-month sentence issued last year for his conviction on the same charge — which he appealed in November on executive privilege grounds — the last time anyone was sentenced for contempt of Congress was during the Cold War.
“While there is a fair amount of precedent for lying to Congress, there is far less for people convicted of contempt of Congress,” John Malcolm, vice president for the Heritage Foundation’s Institute for Constitutional Government and former deputy assistant attorney general in the DOJ’s Criminal Division, told the Daily Caller News Foundation.
During the Cold War, writers, directors and producers known as the “Hollywood Ten,” were sentenced to jail time after they refused to cooperate with the House Un-American Activities Committee (HUAC) and state whether they were Communists. The House initially voted to hold the ten men in contempt in November 1947 after they refused to answer questions presented by the HUAC, which the ten believed violated their First Amendment rights, according to Politico.
Two of the men ultimately received six month sentences, while the other eight received a year and a $1,000 fine, according to the Washington Post.
The Supreme Court scaled back the HUAC’s powers in a 1957 ruling, though it previously declined to hear appeal of the conviction for two of the men in 1950, according to The Washington Post.
A former Nixon aide and former Nixon attorney general pleaded guilty to contempt of Congress charges in 1974, but neither of them went to jail, according to the Washington Post.
“While in line with the sentence that was given to Steve Bannon and less than the government requested, four months is still a pretty hefty sentence when you consider that Navarro raised serious questions about his position as an aide to the president and whether executive privilege (which was invoked by former President Trump) applied, which would prevent him from answering any questions from the Jan. 6 committee,” Malcolm said.
Navarro said after the subpoena was issued that “Trump has invoked executive privilege” and that the committee should “negotiate any waiver of the privilege with the president and his attorneys directly, not through me,” according to Axios.
The DOJ sought a six month sentence and $200,000 fine for Navarro.
“The legal issue about whether a current president can waive the privilege when the conversation took place with a former president while he was still in office is an open and important question, and the Justice Department has, in the past, been very protective of presidential communications,” Malcolm continued.
“The words ‘executive privilege’ are not magical dust to avoid a duty that you have when Congress issues process,” Judge Amit P. Mehta said Thursday, according to Reuters, though she noted it “somewhat” mitigates his conduct. “It’s not a get-out-of jail-free card.”
Trump’s former impeachment attorney, David Schoen, explained on CNN last week that Navarro’s case would be “tougher” to appeal than Bannon’s due to the facts.
“Judge Mehta found that Navarro, despite being asked repeatedly to prove it, never proved when or where or how executive privilege was invoked, and that’s the key to Steve Bannon’s case,” Schoen said.
Malcolm also noted that “while the Biden Justice Department is certainly being aggressive about prosecuting Trump administration officials for contempt of Congress, past Justice Departments in Democratic administrations have been less zealous about pursuing Democrats who were held in contempt of Congress.”
“Former Attorney General Eric Holder and IRS official Lois Lerner would be examples of that,” he said.
Under former President Barack Obama, the DOJ declined in 2012 to bring charges against Holder after Congress voted to hold him in contempt for failing to turn over documents.
“[I]t is an established principle, dating back to the administration of President Ronald Reagan, that the Justice Department does not pursue prosecution in a contempt case when the president has asserted executive privilege,” former White House spokesman Jay Carney said at the time, according to CNN.
The DOJ also declined to charge Lerner in 2015 for a refusal to testify based on her Fifth Amendment right not to incriminate herself, according to Politico.
Navarro said in an appearance on Fox News Friday that he is “the first senior White House advisor … ever to be charged with this alleged crime.”
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