Donald Trump’s pet econ crank Peter Navarro got some bad news yesterday, and so did his former boss. Judge Colleen Kollar-Kotelly granted summary judgment to the government in its replevin case against Navarro, ordering him to cough up emails wrongly retained after he left office. But her opinion laid waste to an argument frequently put forward by Trump himself that the Presidential Records Act contains “no enforcement mechanism,” and thus the government’s only remedy is to ask nicely for the return of its property. This cannot be welcome news for the former president as a grand jury considers charging him with a crime arising out of his refusal to return government documents he stole from the White House and stashed in his pool locker at Mar-a-Lago.
This case is a bizarre vehicle for such a weighty precedent. Navarro acted as his own attorney in his multiple criminal and civil cases for a while, and things only got marginally better when he retained Trumpland lawyers Stanley Woodward and Stanley Brand, who also represent former Trump official Kash Patel, Oath Keeper Kelly Meggs, and at least one other January 6 defendant. And while both Stanleys have been around DC for decades, the arguments in this case were, uhhh … unbearably stupid.
First, citing his pending indictment for refusal to testify to the January 6 Committee, Navarro demanded act-of-production immunity before he would turn over government emails sent via his Proton Mail account and improperly retained after he left office.
“While we acknowledge Mr. Navarro’s obligations under the Presidential Records Act we also must acknowledge the conflict as between the Act and his rights under the Constitution, including the Fifth Amendment,” his attorney wrote in a July 29, 2022 letter to National Archives (NARA) general counsel Gary Stern. The National Archives was clearly in no position to immunize anyone, and anyway the case Navarro cited in support of his demand, Fisher v. United States, 425 U.S. 391, 410-11 (1976), seemed to run totally counter to his theory. In fact, the Supreme Court forced the appellant in that case to hand over his incriminating tax documents, writing that “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.”
And it didn’t get better when the government filed a replevin action under the Presidential Records Act (PRA) in August of 2022, demanding that Navarro give back the emails he’d already admitted that he had. In a motion to dismiss, he argued that the PRA had no enforcement mechanism, citing a case finding no private right of enforcement of the PRA by third parties. Alternatively, he argued there was no deadline for production under the PRA, and so compliance could be suspended indefinitely, a line of reasoning he supported by referring to a New York Times article by Maggie Haberman and Michael Schmidt. And finally, he claimed that replevin was inappropriate because the documents in question had no monetary value, likening them to frequent flier miles.
The government moved for summary judgment on grounds of AYFKMRN, more or less. At which point Navarro tried to manufacture an actual controversy as to the facts by claiming, among other things, that there was dispute as to whether he had any emails responsive to the government’s request — something his own attorney had already admitted. And he added that the it would be inappropriate for the court to interpret the PRA because that statute’s enforceability had never before been interpreted. (See? Unbearably stupid!)
None of this endeared him to the court, which noted that “on July 25, 2022, Dr. Navarro’s counsel estimated that, based on their review of these documents, between 200 and 250 of these 1,700 documents were PRA records.” And Judge Kollar-Kotelly was highly unimpressed with the ban on novel statutory interpretation.
“If applied, this contention would render every new statute unenforceable because no court would ever be able to interpret it a first time absent another court’s also-prohibited first interpretation,” she wrote. “The circularity of such a novel doctrine is self-evident.”
All of which is hilarious, but the court’s ruling on the enforceability of the PRA is clearly the most interesting part in light of Trumpland’s dogged insistence that the Justice Department was somehow barred from doing anything other than politely requesting the return of classified documents from the former president.
Although the PRA sets out a statutory scheme, it is not in the Congress’ ambit to envision every manner in which a person might seek to evade the requirements of a statute. And clearly, while the statute seeks to make plain that all Presidential records are to be provided to NARA, Congress did not delineate provisions to cover a situation where a former covered employee would (a) maintain a private, encrypted email account with official emails, (b) not follow the prescribed transfer of those emails to the official account, and (c) refuse to return those emails that constitute Presidential records. Enforcement of the statute by the government to assert its ownership rights militates that it must be free to utilize those legal processes available to it whether or not they are expressly provided for by statute In this instance, the United States correctly invokes the Court’s judicial power to require the return of the wrongfully retained emails.
In short, just as there is no right without a remedy, there is no statute without an implied right of enforcement — an implicit endorsement of the Justice Department’s right to enforce the PRA via judicial process, i.e., an appropriately predicated search warrant served by FBI agents.
None of which can be welcome news for the former president. Although considering two district attorneys appear to be on the precipice of indicting him, he’s probably got other worries this week. And speaking of other worries, Navarro’s criminal contempt of Congress trial has been postponed, but is scheduled to take place some time this spring. So, presumably he’s got bigger fish to fry, too.
US v. Navarro [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.