Federal prosecutors deployed a rare procedural maneuver on Monday night to seek a judicial order for former White House adviser Peter Navarro to relinquish presidential records from “at least one unofficial email account” without conferring immunity to him.
“There is no genuine dispute of fact that Dr. Navarro used at least one unofficial email account to conduct official business, that those records are the property of the United States, and that Dr. Navarro has refused to return the records to the United States,” prosecutors wrote in a 14-page memorandum. “Indeed, his counsel has expressly admitted as much. Because Dr. Navarro remains in possession of property that belongs to the United States, this Court should issue a writ of replevin requiring Dr. Navarro to return what he wrongfully continues to possess.”
Facing a pending criminal prosecution for contempt of Congress, Navarro courted a civil lawsuit against him in August over the use of a ProtonMail account when he served as former President Donald Trump’s trade adviser. The Swiss-based email company offers end-to-end encryption on emails sent to each other on their servers. The lawsuit, filed in the District of D.C., accused Navarro of flouting the Presidential Records Act and stonewalling the National Archives and Records Administration.
The Justice Department turned up the heat on Navarro on Monday evening, seeking what is known as a writ of replevin.
“Because there is no genuine dispute that Defendant has unlawfully retained and withheld Presidential records that are rightly the property of the United States, this motion seeks summary judgment and a writ of replevin from this Court ordering Defendant to return all Presidential records in his possession to the United States,” the memo states.
Before the Justice Department filed suit, Navarro’s counsel refused to produce any records without a grant of immunity, according to court papers.
Former federal prosecutor Mitchell Epner told Law&Crime that the Justice Department’s motion would avert this impasse.
“This is a very clever procedural device by the DOJ to get the documents from Navarro without conferring immunity upon him for the act of producing the documents,” said Epner, who is now a partner at Rottenberg Lipman Rich PC.
According to Epner, this type of government request is uncommon — but then again, so is the alleged conduct that prompted it.
“I have never seen it done,” Epner added. “It is very rare that a defendant has physical possession of documents that, by operation of law, belong to the U.S. Government.”
Law&Crime reached out to Navarro’s attorney John S. Irving, but he declined to comment on the record on the latest development.
In response to a prior inquiry, the lawyer asserted: “Mr. Navarro has never refused to provide records to the government.”
“As detailed in our recent letter to the Archives, Mr. Navarro instructed his lawyers to preserve all such records, and he expects the government to follow standard processes in good faith to allow him to produce records,” Irving said in August.
Having lost his recent bid to advance even a “colorable” claim of selective prosecution, Navarro will stand trial in the contempt of Congress case on Nov. 17.
Have a tip we should know? [email protected]