United States v. Navarro

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) UNITED STATES OF AMERICA ) ) ) v. ) Case No. 22-cr-200 (APM) ) PETER K. NAVARRO, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER ON ENTRAPMENT BY ESTOPPEL AND PUBLIC AUTHORITY DEFENSES

I.

In its Memorandum Opinion issued on January 19, 2023, the court held that, “without a

more precise factual proffer,” the defense of entrapment by estoppel was “not available to

Defendant,” and that a public authority defense was inapplicable. United States v. Navarro,

No. 22-cr-200 (APM), 2023 WL 371968, at *15 (D.D.C. Jan. 19, 2023). Defendant at last has

proffered evidence as to entrapment by estoppel, and in the same filing, he attempts to resurrect

the public authority defense. See Def.’s Suppl. Notice Pursuant to Fed. R. Crim. P. 12.3 of

Defenses of Public Authority and Entrapment by Estoppel, ECF No. 92 [hereinafter Def.’s Suppl.].

For the reasons explained below, based on his proffer, neither defense is available to

Defendant at trial.

II.

Defendant’s proffer starts with an incorrect statement of the law. He contends that the

“willfully” element of the contempt of Congress offense, 2 U.S.C. § 192, requires showing that “a

defendant acted with knowledge that his actions were unlawful.” Def.’s Suppl. at 1. That is wrong. “The gist of the offense [of contempt] is refusal to answer pertinent questions. No moral turpitude

is involved. Intentional violation is sufficient to constitute guilt.” Sinclair v. United States, 279

U.S. 263, 299 (1929) (rejecting “good faith” reliance “on the advice of competent counsel” as a

defense to contempt), overruled in part on other grounds by United States v. Gaudin, 515 U.S.

506 (1995); Licavoli v. United States, 294 F.2d 207, 208 (D.C. Cir. 1961) (“Evil motive is not a

necessary ingredient of willfulness under this clause of the statute. A deliberate intention not to

appear is sufficient.”).

Defendant’s citations to Ratzlaf v. United States, 510 U.S. 135 (1994), and

(Sillasse) Bryan v. United States, 524 U.S. 184 (1988), are patently disingenuous. The Supreme

Court “has required proof that a defendant know which law he was breaking in only two contexts:

criminal tax evasion, and currency structuring.” United States v. Burden, 934 F.3d 675, 690–91

(2019) (discussing Cheek v. United States, 498 U.S. 192 (1991) (tax evasion) and

Ratzlaf, 510 U.S. at 137–38 (currency structuring)). Those contexts “involve[] highly technical

statutes that present[] the danger of ensnaring individuals engaged in apparently innocent

conduct.” (Sillasse) Bryan, 524 U.S. at 194.

The contempt of Congress statute is not such a “highly technical statute,” and the Supreme

Court long ago rejected efforts to make it so. See United States v. (Helen) Bryan, 339 U.S. 323,

330 (1950) (“[W]hen the Government introduced evidence in this case that respondent had been

validly served with a lawful subpoena directing her to produce records within her custody and

control, and that on the day set out in the subpoena she intentionally failed to comply, it made out

a prima facie case of wilful default.”). Defendant therefore need not have known his conduct was

unlawful to be convicted of contempt of Congress. See Licavoli, 294 F.2d at 208.

2 III.

Defendant starts his factual proffer as follows: “If called to testify at trial, [he] will state

under oath that President Trump instructed him to assert Executive Privilege in response to the

Select Committee’s subpoena.” Def.’s Suppl. at 2. Seems pretty straightforward. But the rest of

Defendant’s factual proffer is notable for what it does not say.

Defendant still has not told the court “when [the] conversation [with President Trump about

the Select Committee’s subpoena] occurred,” or anything concerning the “substance” of that

conversation. Navarro, 2023 WL 371968, at *3. Instead, he represents that (1) his “response to

the Select Committee’s subpoena closely resembled the assertion of Executive Privilege” he made

in response to a different subpoena from the Coronavirus Subcommittee, Def.’s Suppl. at 2;

(2) President Trump’s “public instructions” to him about the Coronavirus Subcommittee “occurred

near the same time” as the Select Committee’s subpoenas to other former Trump Administration

officials, id. at 3; (3) he understood that President Trump’s “instruction to assert Executive

Privilege applied to all subpoenas issued by Congress, including the one he anticipated he would

receive from the Select Committee,” id. (emphasis added); and (4) “[p]ursuant to the directions he

received from President Trump regarding [the Select Committee subpoena], Dr. Navarro again

acted with public authority and notified the Select Committee that he was unable to comply,”

id. at 3–4.

Taken together, these representations never say when or how President Trump directed

Defendant to invoke privilege after President Trump became aware of the Select Committee’s

subpoena to Defendant. The timing and substance is critical. Unless President Trump had actual

knowledge of the Select Committee’s subpoena to Defendant, and instructed Defendant as to that

particular subpoena, he could not have made a “‘formal claim of privilege’ after ‘personal

3 consideration.’” Navarro, 2023 WL 371968, at *3; see United States v. Reynolds, 345 U.S. 1, 7–8

(1953) (“There must be formal claim of privilege, lodged by the head of the department which has

control over the matter, after actual personal consideration by that officer.”).

Defendant’s proffer sounds much the same as the “standing order” argument he previously

raised: that the President’s public instruction to assert privilege in response to the Coronavirus

Subcommittee subpoena was a command to do the same as to any and all subpoenas from

Congress. See Navarro, 2023 WL 371968, at *4; Def.’s Suppl. at 2 (“[Defendant] understood that

President Trump’s instruction to assert Executive Privilege applied to all subpoenas issued by

Congress [to President Trump’s senior advisors], including the one he anticipated he would receive

from the Select Committee as a Senior Advisor to President Trump.”). The court previously

rejected that contention, see Navarro, 2023 WL 371968, at *4, and does so again, if Defendant is

attempting to revive it.

In short, when read in context, Defendant’s declaration that “President Trump instructed

him to assert Executive Privilege in response to the Select Committee’s subpoena,” Def.’s Suppl.

at 2, appears to be a purposely ambiguous statement intended to elide the precision the law

requires.

IV.

In any event, even if the court were to accept Defendant’s proffer at face value, it still falls

short. The defense of entrapment by estoppel requires proof (1) “that a government agent actively

misled him about the state of the law defining the offense,” (2) “that the government agent was

responsible for interpreting, administering, or enforcing the law defining the offense,” (3) “that the

defendant actually relied on the agent’s misleading pronouncement in committing the offense,”

and (4) “that the defendant’s reliance was reasonable in light of the identity of the agent, the point

4 of law misrepresented, and the substance of the misrepresentation.” United States v. Chrestman,

525 F. Supp. 3d 14, 31 (D.D.C. 2021) (quoting United States v. Cox, 906 F.3d 1170, 1191

(10th Cir. 2018)); see Navarro, 2023 WL 371968, at *14. Defendant’s proffer falters on the first

and fourth elements.

Actively Misleading. The Supreme Court’s decision in Raley v. State of Ohio illustrates

what “actively misleading” looks like. 360 U.S. 423 (1959). There, four individuals invoked their

Fifth Amendment privilege against self-incrimination in response to questions posed by the Ohio

Legislature. Id. at 424. “[T]he Chairman of the Commission, who clearly appeared to be the agent

of the State in a position to give such assurances, apprised three of the appellants that the privilege

[against self-incrimination] in fact existed, and by his behavior toward the fourth obviously gave

the same impression.” Id. at 437. Afterwards, the four were charged with, and convicted of,

refusing to answer questions put to them at the inquiry. Id. at 432–33. In affirming their

convictions, the Ohio Supreme Court held that a state statute that automatically granted immunity

to the witnesses “deprived them of the protection of the privilege [against self-incrimination],” and

they “therefore had committed an offense by not answering the questions as to which they asserted

the privilege.” Id. at 425.

The Supreme Court reversed. It held that the convictions (with one exception, not relevant

here) “violated the Due Process Clause of the Fourteenth Amendment.” Id. “[T]o permit the

convictions to stand,” the Court wrote, “would be to sanction the most indefensible sort of

entrapment by the State—convicting a citizen for exercising a privilege which the State clearly

had told him was available to him.” Id. at 438 (emphasis added). This was not a case where the

state agent’s “commands [were] simply vague or even contradictory”—the commands were

“active[ly] misleading.” Id.; see also Cox v. Louisiana, 379 U.S. 559, 568–70 (1965) (reversing

5 conviction for picketing across the street from a courthouse because a responsible state official

had permitted the picketing and effectively advised that the location of the demonstration was

lawful).

Since Raley, lower courts have strictly enforced the “active misleading” element of

entrapment by estoppel. For instance, the Fourth Circuit in United States v. Aquino-Chacon said

that to establish the defense of entrapment by estoppel, the defendant “must demonstrate that there

was ‘active misleading’ in the sense that the government actually told him that the proscribed

conduct was permissible.” 109 F.3d 936, 939 (4th Cir. 1997). The Seventh Circuit in

United States v. Howell stated similarly that the defense applies “when, acting with actual or

apparent authority, a government official affirmatively assures the defendant that certain conduct

is legal and the defendant reasonably believes that official.” 37 F.3d 1197, 1204 (7th Cir. 1994).

And, the Fifth Circuit in United States v. Trevino-Martinez, explained that a defendant is entitled

to raise the defense “only when a government official or agent actively assures a defendant that

certain conduct is legal.” 86 F.3d 65, 69 (5th Cir. 1996) (internal quotation marks and citation

omitted).

Here, Defendant does not say that President Trump “actually told him” or “affirmatively

assured” him that it would be lawful not to comply with the Select Committee’s subpoena.

See generally Def.’s Suppl. Defendant does not proffer, for example, that President Trump

advised him that he did not have to appear for testimony because of the privilege invocation. Nor

does he assert that President Trump told him he could withhold all responsive records, regardless

of whether they related to his official capacity, because of the privilege invocation. To the

contrary, Defendant proffers that “[he] knew that President Trump’s instructions regarding the

Select Committee’s subpoena followed the long-standing policy of DOJ’s Office of Legal Counsel

6 [(OLC)].” Def.’s Suppl. at 4 (emphasis added). In other words, he seemingly acted based on his

understanding of the law, not on President Trump’s “active assurance” that noncompliance would

be lawful.

Defendant also once again points to OLC opinions to support his entrapment defense.

See id. Previously, the court observed that “[o]ther than referencing OLC opinions . . . Defendant

has never represented that he actually relied on any particular OLC opinion before he refused to

comply with the Select Committee’s subpoena.” Navarro, 2023 WL 371968, at *15. He still has

not identified any particular OLC opinion. See generally Def.’s Suppl. Instead, he merely states

that he understood the Department of Justice’s “long-standing policy” to be that “Senior

Presidential Advisors have absolute testimonial immunity from Congressional subpoenas.”

Id. at 4. But even if that were an accurate statement of OLC’s position—and it is not—Defendant

points to no OLC opinion that recognizes absolute immunity from congressional process for a

former senior aide to a former President. That is because there is none. 1 Defendant therefore has

failed to establish that he was “actively mislead” by any OLC opinion.

Reasonable Reliance. Nor can Defendant demonstrate reasonable reliance on President

Trump’s instruction to invoke executive privilege. “In order for his reliance to be reasonable, the

defendant must establish that ‘a person sincerely desirous of obeying the law would have accepted

the information as true, and would not have been put on notice to make further inquiries.’”

Trevino-Martinez, 86 F.3d at 69 (quoting United States v. Brebner, 951 F.2d 1017, 1024

(9th Cir. 1991). As already discussed, President Trump offered no “information as true” upon

1 OLC has taken the position that current and former senior advisors to a sitting President enjoy absolute immunity from compelled congressional testimony. See Testimonial Immunity Before Cong. of the Former Counsel to the President, 43 Op. O.L.C. __ (May 20, 2019). It also has said that a senior advisor to a sitting President cannot be prosecuted for contempt for refusing at the President’s direction to produce records concerning official acts. See Prosecution for Contempt of Cong. of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101 (May 30, 1984). OLC has never issued an opinion addressing the immunity available to a former senior aide to a former President, the circumstance at issue here.

7 which Defendant relied. Additionally, a reasonable person would have understood that the former

President’s directive was the just the starting point for understanding what his compliance

obligations were.

A modicum of research would have revealed that the Supreme Court has held that

executive privilege is qualified, not “absolute.” United States v. Nixon, 418 U.S. 683, 706–07

(1974). It also would have shown that the D.C. Circuit held long ago that, as to congressional

inquiries, executive privilege may yield to “a strong showing of need by another institution of

government.” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725,

730 (D.C. Cir. 1974). And, finally, he would have learned that the privilege is “held by the

Executive Branch, ‘not for the benefit of the President as an individual, but for the benefit of the

Republic,’” Trump v. Thompson, 20 F.4th 10, 26 (D.C. Cir. 2021) (quoting Nixon v. GSA, 433 U.S.

425, 449 (1977), and that “it must be presumed that the incumbent President is vitally concerned

with and in the best position to assess the present and future needs of the Executive Branch, and

to support invocation of the privilege accordingly,” Nixon v. GSA, 433 U.S. at 449.

Here, Defendant learned before his deposition date that President Biden had decided not to

assert executive privilege or testimonial immunity as to the Select Committee’s subpoena to him.

U.S.’ Opp’n to Def.’s Mot. to Dismiss, ECF No. 44, Ex. 5, ECF No. 44-5, at 2. Yet, he apparently

made no further inquiry as to how the sitting President’s determination affected his obligations to

the Select Committee. Defendant’s reliance on the former President’s seemingly unadorned

instruction to invoke executive privilege was not reasonable.

It also was not reasonable for Defendant to rely on any OLC opinion. As discussed, no

OLC opinion takes the position that a former aide to a former President enjoys absolute testimonial

8 immunity. Nor does Defendant say he sought clarification from the Department of Justice about

OLC’s position.

V.

Defendant also attempts to revive a public authority defense that the court previously held

was not available to him. Def.’s Suppl. at 1; Navarro, 2023 WL 371968, at *15. It still is not.

The public authority defense is “narrowly defined.” United States v. Alvarado, 808 F.3d

474, 484 (11th Cir. 2015). To assert it, Defendant must show that (1) President Trump “actually

authorized [him] to commit the particular criminal act at issue” and he “reasonably relied on that

authorization,” and (2) President Trump “actually had the authority to permit [him] to commit the

criminal act in question.” Id.

Defendant says he intends “to assert a defense of actual . . . exercise of public authority.”

Def.’s Suppl. at 1 (emphasis added). The court already has held, however, that President Trump

did not have the actual authority to approve Defendant’s violation of law because he was a private

citizen at the time. Navarro, 2023 WL 371968, at *15.

Further, Defendant states he will put forth a defense of “believed exercise of public

authority.” Def.’s Suppl. at 1 (emphasis added). It is not entirely clear what Defendant means by

this. If he means to say that he did not comply with the subpoena because he believed President

Trump had the apparent authority to permit him to violate the law, that is not a defense.

See Navarro, 2023 WL 371968, at *15. Alternatively, if he contends that he made an honest

mistake about the former President’s authority to sanction criminal conduct, that is not a defense

either. See Licovoli, 294 U.S. F.2d at 208. In sum, a public authority defense is not available to

Defendant.

9 VI.

For the foregoing reasons, Defendant is precluded from advancing an entrapment by

estoppel or public authority defense at trial.

Dated: July 28, 2023 Amit P. Mehta United States District Court Judge