United States of America v. Peter K. Navarro

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 18, 2025 Decided July 21, 2026
No. 24-3006
UNITED STATES OF AMERICA,
APPELLEE
v.
PETER K. NAVARRO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cr-00200-1)
Stanley M. Brand argued the cause for appellant. With
him on the briefs were John S. Irving IV and John P. Rowley
III.
Kelly B. McClanahan was on the brief for amici curiae
Heidi Kitrosser, et al. in support of affirmance.
Before: MILLETT, PILLARD, and CHILDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.

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MILLETT, Circuit Judge: In 2021, Peter K. Navarro, a
former aide to then-former President Donald J. Trump,
published a book about his stint in politics. In that book and in
promotional interviews, Dr. Navarro took credit for devising a
plan to “leverage” the Vice President’s authority under the
Electoral Count Act of 1887 to “delay certification” of the
results of the 2020 presidential election on January 6, 2021.
Dr. Navarro’s public statements caught the attention of the
U.S. House of Representatives’ Select Committee to
Investigate the January 6th Attack on the U.S. Capitol. The
Select Committee sent a subpoena to Dr. Navarro that sought
documents related to his book and public statements and that
ordered him to appear for a deposition on those topics. Dr.
Navarro claimed executive privilege before even seeing the
subpoena and refused to turn over documents, appear for his
deposition, or engage with the Select Committee’s efforts to
accommodate his privilege claim.
After the deadline for compliance passed, the House of
Representatives voted to hold Dr. Navarro in contempt, and a
federal grand jury indicted Dr. Navarro on two counts of
contempt of Congress.
Dr. Navarro moved to dismiss the indictment on the
ground that President Trump had invoked executive privilege.
After an evidentiary hearing, the district court concluded that
no such invocation of privilege had occurred and declined to
dismiss the indictment. The district court also granted the
government’s motion in limine to preclude Dr. Navarro from
arguing to the jury that he mistakenly believed he was not
required to respond to the Select Committee’s subpoena. A
jury subsequently found Dr. Navarro guilty on both counts of
contempt. Dr. Navarro appealed. We affirm.

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I
A
Congress’s “power to secure needed information” through
subpoenas “has long been treated as an attribute of the power
to legislate.” McGrain v. Daugherty, 273 U.S. 135, 161
(1927). “Without information, Congress would be shooting in
the dark, unable to legislate ‘wisely or effectively.’” Trump v.
Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (quoting
McGrain, 273 U.S. at 175). For that reason, both “the power
of inquiry” and “process to enforce it” are “essential and
appropriate auxiliar[ies] to the legislative function.” McGrain,
273 U.S. at 174; see also Quinn v. United States, 349 U.S. 155,
160–161 (1955) (“Without the power to investigate—including
of course the authority to compel testimony, either through its
own processes or through judicial trial—Congress could be
seriously handicapped in its efforts to exercise its constitutional
function[.]”) (footnotes omitted).
Each House of Congress can delegate its full subpoena
power to “committees and subcommittees[.]” Watkins v.
United States, 354 U.S. 178, 200–201 (1957). The House of
Representatives made such a delegation to the January 6th
Select Committee. See H.R. Res. 503, 117th Cong., 1st Sess.
§ 5(c)(4) (2021).
Federal law mandates compliance with congressional
subpoenas. Under Section 192 of Title 2, “[e]very person”
subpoenaed “by the authority of either House of Congress to
give testimony or to produce papers” on a “matter under
inquiry” before “any committee of either House” must comply
with that subpoena. 2 U.S.C. § 192. Any person who
“willfully makes default” on the subpoena or, “having
appeared, refuses to answer any question pertinent to the

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question under inquiry, shall be deemed guilty of a
misdemeanor[.]” Id.
A congressional committee may refer a report finding a
witness’s default to the full House or Senate. 2 U.S.C. § 194.
If the full body approves a contempt citation, the Speaker of
the House or President of the Senate, as the case may be, must
refer that citation to the appropriate United States Attorney’s
Office for prosecution. Id.
B
Recipients of congressional subpoenas “retain common
law and constitutional privileges” against governmental
demands for the disclosure of requested information. Mazars,
140 S. Ct. at 2032. As relevant here, a subpoena recipient may
resist the disclosure of specific “governmental
communications protected by executive privilege.” Id.
“Executive privilege is an extraordinary assertion of power
‘not to be lightly invoked.’” Cheney v. United States Dist. Ct.
for D.C., 542 U.S. 367, 389 (2004) (quoting United States v.
Reynolds, 345 U.S. 1, 7 (1953)). This case concerns two types
of executive privileges: the presidential communications
privilege and testimonial immunity. This opinion uses the term
“executive privilege” to refer to both.
1
The presidential communications privilege is the
“canonical form of executive privilege[.]” Trump v.
Thompson, 20 F.4th 10, 25 (D.C. Cir. 2021). It permits the
President to shield from disclosure “documents or other
materials that reflect presidential decisionmaking and
deliberations and that the President believes should remain

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confidential.” In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir.
1997).
The presidential communications privilege arises
implicitly “from the supremacy of the Executive Branch within
its assigned area of constitutional responsibilities[.]” Nixon v.
Administrator of Gen. Servs., 433 U.S. 425, 447 (1977)
(“Nixon v. GSA”). The confidentiality afforded by the
presidential communications privilege protects “the public
interest in candid, objective, and even blunt or harsh opinions
in Presidential decisionmaking.” United States v. Nixon, 418
U.S. 683, 708 (1974). Without such protection, “[h]uman
experience teaches that those who expect public dissemination
of their remarks may well temper candor with a concern for
appearances and for their own interests to the detriment of the
decisionmaking process.” Id. at 705. In addition, because that
confidentiality would have little value if it dissolved the
moment a president’s time in office ended, the presidential
communications privilege “survives the individual President’s
tenure.” Nixon v. GSA, 433 U.S. at 449.
The presidential communications privilege, however, is
not absolute. See Trump v. United States, 144 S. Ct. 2312, 2330
(2024). Its protection is only “presumptive[,]” United States v.
Nixon, 418 U.S. at 708, and “qualified[,]” subject to being
outweighed by competing interests, Thomspon, 20 F.4th at 26.
The privilege’s protection “may be overcome by ‘a strong
showing of need by another institution of government[.]’”
Thompson, 20 F.4th at 26 (alteration in original) (quoting
Senate Select Comm. on Presidential Campaign Activity v.
Nixon, 498 F.2d 725, 730 (D.C. Cir. 1974) (en banc)). And it
applies narrowly to “records solicited and received by the
President or the President’s immediate White House advisers
who have broad and significant responsibility for advising the
President.” Id. at 25–26 (formatting modified); see also

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Mazars, 140 S. Ct. at 2032–2033 (declining to “transplant that
protection root and branch to * * * [information] which by
definition does not implicate sensitive Executive branch
deliberations”).
2
This case also involves a claim of “testimonial immunity.”
No court has ever recognized this privilege. The Office of
Legal Counsel (“OLC”) has issued multiple opinions on the
topic in which it reasons that the President’s “immediate
advisers are absolutely immune from testimonial compulsion
by a Congressional committee on matters related to their
official duties” during their tenure. Testimonial Immunity
Before Congress of the Former Counsel to the President, 43
Op. O.L.C. 108, 110 (2019) (“Testimonial Immunity”)
(quotation marks omitted); see also Congressional Oversight
of the White House, 45 Op. O.L.C. ---, 2021 WL 222744, at
*35 (Jan. 8, 2021); Memorandum from William H. Rehnquist,
Assistant Att’y Gen., Off. of Legal Counsel, to John D.
Ehrlichman, Assistant to the President for Domestic Affs., Re:
Power of Congressional Committee to Compel Appearance or
Testimony of “White House Staff” 7 (Feb. 5, 1971),
https://perma.cc/TK7J-WHKH (“[T]hose who customarily
meet with the President on a regular or frequent basis” cannot
“be compelled to appear before a congressional committee.”).0F
1
OLC has further opined that this testimonial immunity
“continues after” an adviser leaves the White House such that
the sitting “President may lawfully direct [a former adviser] not
1 This court referenced, but did not ultimately address,
testimonial immunity in Committee on the Judiciary, U.S. House of
Representatives v. McGahn, 951 F.3d 510, 518 (D.C. Cir. 2020),
rev’d en banc, 968 F.3d 755 (D.C. Cir. 2020), on reh’g, 973 F.3d 121
(D.C. Cir. 2020).

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to appear in response to” a congressional subpoena.
Testimonial Immunity, 43 Op. O.L.C. at 123, 128. But when a
former President directs a former adviser not to testify, that
adviser enjoys only “a qualified, rather than absolute,
testimonial immunity.” See Statement of Interest of the United
States at 8, Meadows v. Pelosi, 639 F. Supp. 3d 62 (D.D.C.
2022) (No. 21-cv-3217) (citing Testimonial Immunity, 43 Op.
O.L.C. at 110–120).
For purposes of this appeal, we assume without deciding
that testimonial immunity is a valid privilege and that it can
apply when invoked by a former President.
II
A
On January 6, 2021, both Houses of Congress convened in
a joint session to certify the votes of the Electoral College in
the 2020 presidential election. During that session, a mob of
rioters overwhelmed the security perimeter around the Capitol,
breached the Capitol itself, and delayed the certification
process. See Fischer v. United States, 144 S. Ct. 2176, 2182
(2024); Thompson, 20 F.4th at 17–18.
Six months later, the House of Representatives adopted
House Resolution 503 and established the U.S. House of
Representatives Select Committee to Investigate the January
6th Attack on the U.S. Capitol. H.R. Res. 503, 117th Cong.,
1st Sess. (2021). Resolution 503 directed the Select Committee
to “investigate and report upon the facts, circumstances, and
causes” of the events of January 6th. Id. § 3(1). Resolution
503 also empowered the Chairman of the Select Committee to
issue subpoenas for relevant documents and testimony. Id.
§ 5(c)(4).

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From 2017 to 2021, Peter Navarro served in various roles
in the first Trump administration as a self-described “senior
White House adviser[.]” J.A. 394. After the House of
Representatives impeached then-President Trump on January
13, 2021, Dr. Navarro published the “Navarro Report”—a
three-volume compendium designed as an “evidentiary
handbook” for the Senate’s impending impeachment trial that
purported to show that the 2020 election results were “the
poisonous fruit of widespread fraud[.]” J.A. 397–398. Dr.
Navarro publicly promoted the Report and discussed his
findings “in his capacity as a private citizen[,]” not as a
government employee. J.A. 809.
In November 2021, having left the government, Dr.
Navarro published a book titled In Trump Time: My Journal
of America’s Plague Year. In those pages, Dr. Navarro claimed
to have devised a “strategy called the Green Bay Sweep which
sought to leverage Vice President Mike Pence’s constitutional
power under the Electoral Count Act of 1887” to delay
Congress’s certification of the Electoral College vote on
January 6th. J.A. 401. In interviews promoting his book, Dr.
Navarro elaborated on the contours of his envisioned Green
Bay Sweep.
After learning of Dr. Navarro’s public pronouncements
about the 2020 election and the events leading up to the January
6th riot, counsel to the Select Committee informed Dr. Navarro
in writing that the Select Committee would seek his deposition
testimony and documents relevant to the Committee’s inquiry.
Counsel asked Dr. Navarro whether he would accept email
service of a subpoena and whether he was represented by
counsel. Three minutes later, and without even seeing the
content of the subpoena, Dr. Navarro replied: “Yes. No
counsel. Executive privilege.” J.A. 2646 (formatting
modified).

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Hours later, the Select Committee served its subpoena. The
cover letter explained that the subpoena sought documents and
testimony related to, among other things, the contents of the
Navarro Report and his Green Bay Sweep theory. The letter
also noted that Dr. Navarro had “already discussed these and
other relevant issues in his recently published book, in
interviews with reporters, and, among other places, on a
podcast.” J.A. 2634 (formatting modified).
The Select Committee’s subpoena ordered Dr. Navarro to
appear for a deposition on March 2, 2022, and to produce a
schedule of documents by February 23, 2022. That schedule
included documents related to the Navarro Report, Green Bay
Sweep, claims of fraud in the 2020 election, efforts to contest
the results of that election, efforts to organize rallies in
Washington, D.C., and the January 6th attack on the Capitol.
Instructions attached to the schedule directed Dr. Navarro to
compile a privilege log for any documents he intended to
withhold from the Select Committee.
Dr. Navarro did not produce any documents, submit a
privilege log, or otherwise respond to the subpoena by
February 23rd.
On February 24th, the Select Committee wrote to Dr.
Navarro advising him of his default and inquiring whether he
planned to disregard his obligation to appear for a deposition
as well. Days later, Dr. Navarro told the Select Committee that
“President Trump has invoked Executive Privilege in this
matter” and that his “hands [were] tied.” J.A. 2648. The Select
Committee responded that its subpoena concerned topics Dr.
Navarro could discuss “without raising any executive privilege
concerns at all[,]” and that the Select Committee could take
“additional steps to address” Dr. Navarro’s privilege assertion

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if he stated it “on a question-by-question basis during the
deposition.” J.A. 2647.
Dr. Navarro’s only response was to inquire whether his
deposition would “be open to the public and press[.]” J.A.
2647. When the Select Committee informed him that the
deposition would be closed, but that it “would be happy to work
with” Dr. Navarro to schedule the deposition at his
convenience and tailor any inquiry to his assertions of
privilege, Dr. Navarro simply copied and pasted his earlier
message asserting executive privilege. J.A. 2647.
On February 28th, the Deputy White House Counsel to
then-President Joseph R. Biden Jr. wrote Dr. Navarro regarding
the Select Committee’s subpoena. That letter informed Dr.
Navarro that, in President Biden’s view, an assertion of
executive privilege in response to the subpoena was “not
justified,” and that President Biden had “decided not to assert
executive privilege as [to Dr. Navarro’s] testimony regarding
those subjects, or any documents” bearing on them. J.A. 791.
The letter also advised that President Biden had decided not to
“assert immunity to preclude [Dr. Navarro] from testifying
before the Select Committee.” J.A. 791.
Dr. Navarro did not respond. Dr. Navarro did not cure his
earlier default on the subpoena’s demand for documents. And
Dr. Navarro did not appear for his scheduled deposition on
March 2nd.
Weeks later, the Select Committee issued a report on its
interactions with Dr. Navarro. H.R. REP. NO. 284, 117th
Cong., 2d Sess. (2022). In relevant part, the Select Committee
reported that Dr. Navarro had defaulted on its subpoena
regarding topics “as to which there can be no conceivable
privilege claim” based solely “on a blanket assertion of
executive privilege purportedly asserted by former-President

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Trump.” Id. at 14. The report added that there was “no
evidence that former-President Trump ha[d] asserted executive
privilege,” and that the sitting President had expressly declined
to assert the privilege. Id.
On March 28, 2022, the Select Committee unanimously
recommended to the full House that it hold Dr. Navarro in
contempt. A week later, the full House found Dr. Navarro in
contempt and referred the matter to the U.S. Attorney for the
District of Columbia for prosecution under Section 192. H.R.
Res. 1037, 117th Cong., 2d Sess. (2022).
B
In June 2022, a grand jury indicted Dr. Navarro on two
counts of contempt of Congress, in violation of Section 192.
Count 1 concerns Dr. Navarro’s refusal to produce subpoenaed
materials. Count 2 concerns Dr. Navarro’s refusal to appear
for his deposition.
1
Dr. Navarro moved to dismiss both counts of the
indictment on the ground that “when a former president
invokes Executive Privilege as to a senior presidential advisor,
that advisor cannot thereafter be prosecuted for contempt of
Congress” because a contrary rule would amount to
“unconstitutional interference with the doctrine of separation
of powers.” J.A. 122. The district court initially denied the
motion on the ground that Dr. Navarro had not offered any
factual support for his claim that President Trump had invoked
executive privilege for his subpoena. United States v. Navarro,
651 F. Supp. 3d 212, 222–223 (D.D.C. 2023) (“Navarro I”).
In response, Dr. Navarro repeatedly requested that the
court hold an evidentiary hearing to determine whether

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President Trump had invoked executive privilege. The district
court subsequently conducted the requested hearing. See
United States v. Navarro, No. 22-cr-200, 2023 WL 4846715,
at *1 (D.D.C. July 28, 2023).
Dr. Navarro testified to an informal “protocol” of directing
inquiries regarding whether to assert executive privilege to a
personal aide to former President Trump, Elizabeth Harrington,
who would relay those requests to the President. Dr. Navarro
claimed to have “initiated the protocol” by contacting Ms.
Harrington after receiving the Select Committee’s subpoena.
Aug. 28, 2023, Hr’g Tr., ECF No. 148, at 59:8–17. He also
testified that he subsequently had a three-minute phone
conversation with President Trump in which “it was very clear
that the privilege was invoked, very clear.” Id. at 63:25–64:16.
Dr. Navarro submitted phone records corroborating the phone
call’s timeline, but he failed to produce any document
establishing that President Trump had directed him to assert
executive privilege and could not recall whether such a
document existed. See id. at 91:6–16. Dr. Navarro also
submitted a letter, written after the district court had initially
denied his motion to dismiss, from Evan Corcoran, counsel to
President Trump, “confirm[ing] President Trump’s position
that, as one of his senior advisors, [Dr. Navarro] had an
obligation to assert executive privilege on his behalf[.]” J.A.
2360–2361.
Other documentary evidence showed that when Dr.
Navarro had received a different subpoena from a different
committee, counsel to President Trump had sent emails stating
that “POTUS wants to exert executive privilege over this
subpoena[,]” J.A. 2233; President Trump also had publicly
directed “Peter Navarro to protect executive privilege” in
response to that other subpoena, J.A. 2235; and Dr. Navarro
had relayed that written directive to the relevant committee.

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The government submitted transcripts of Ms. Harrington’s
grand jury testimony in which she recalled Dr. Navarro
contacting her about the possibility of asserting executive
privilege in response to the Select Committee’s subpoena, but
she could not recall ever bringing the matter to President
Trump’s attention or directing Dr. Navarro to invoke the
privilege. Justin Clark, another attorney to President Trump,
also testified to the grand jury that, although he was personally
involved in sending letters formally asserting executive
privilege for other Select Committee subpoenas, he was aware
of no such formal assertion as to the Select Committee’s
subpoena to Dr. Navarro.
The district court denied Dr. Navarro’s motion to dismiss.
The court concluded, as a matter of law, that an assertion of
executive privilege requires the following: (1) The “privilege
must be claimed by the President or an official authorized to
speak for the President”; (2) the privilege assertion must come
after “some level of personal consideration” by the President;
and (3) the assertion must be “by some affirmative act or
conduct” rather than “by mere acquiescence[.]” Aug. 30, 2023,
Hr’g Tr., ECF No. 149, at 11:2–13:6.
The court then found, as a matter of fact, that Dr. Navarro
had not come forward with evidence showing that any such
claim of privilege regarding the Select Committee’s subpoena
had been made by the President or a designee. See Aug. 30,
Hr’g Tr. at 14:7–25:20. Finally, the court concluded that
because President Trump had not invoked executive privilege,
Dr. Navarro’s separation-of-powers defense premised on that
invocation necessarily failed.
Separately, the government moved in limine to preclude
Dr. Navarro from presenting at trial any argument or evidence
that he believed in good faith that executive privilege shielded

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his noncompliance with the Select Committee’s subpoena. The
district court granted that motion over Dr. Navarro’s objection,
concluding that this court’s precedent “forecloses a defense
premised solely on [Dr. Navarro’s] claimed belief that
President Trump’s invocation of executive privilege excused”
his default. Navarro I, 651 F. Supp. 3d at 238 (citing Licavoli
v. United States, 294 F.2d 207 (D.C. Cir. 1961)). Consistent
with that ruling, and over Dr. Navarro’s objection, the district
court instructed the jury that Dr. Navarro’s “understanding or
belief that executive privilege excused him from complying”
with the Select Committee’s subpoena was “not a defense to
contempt of Congress[.]” Jury Instr., ECF No. 133, at 10.
2
In September 2023, after a two-day trial, a jury found Dr.
Navarro guilty on both counts of contempt of Congress. The
district court subsequently sentenced Dr. Navarro to concurrent
four-month terms of imprisonment on each count. Dr. Navarro
promptly noticed his appeal.
This court denied Dr. Navarro’s motion for release
pending appeal. Per Curiam Order, No. 24-3006, Dkt.
2044905 (March 14, 2024). The Supreme Court did the same.
Navarro v. United States, 144 S. Ct. 771 (2024) (Roberts, C.J.,
in chambers). Dr. Navarro completed his sentence in July
2024.
Meanwhile, Dr. Navarro continued to press his appeal
challenging his conviction. After the appeal had been fully
briefed, and after granting the government’s unopposed request
for a lengthy extension of time to reconsider its position
following a change in administrations, this court directed the
government to report whether it “wishe[d] to continue to
prosecute this criminal appeal or to have it dismissed.” Per

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Curiam Order, No. 24-3006, Dkt. 2109960 (Apr. 8, 2025). The
government chose neither option and, instead, moved to strike
its own brief on the ground “that it is no longer taking the same
position as the prior administration in this case.” Gov’t’s Mot.,
No. 24-3006, Dkt. 2132720 (Aug. 29, 2025). It did not move
to dismiss the appeal or to file a different brief. We granted the
government’s motion, struck its brief from the record, and
proceeded to oral argument with Dr. Navarro alone, explaining
that “the government is deemed to have withdrawn from any
further participation in this appeal.” Per Curiam Order, No. 24-
3006, Dkt. 2137545 (Sept. 29, 2025).
III
The district court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction over Dr. Navarro’s timely appeal under
28 U.S.C. § 1291. Dr. Navarro’s completion of his sentence
does not moot his appeal. See United States v. Juvenile Male,
564 U.S. 932, 936 (2011).
IV
Dr. Navarro first challenges the district court’s denial of
his motion to dismiss the indictment on separation-of-powers
grounds. We review questions of constitutional law de novo.
United States v. Nassif, 97 F.4th 968, 973 (D.C. Cir. 2024). We
review the district court’s factual findings for clear error.
United States v. Bryant, 111 F.4th 105, 108 (D.C. Cir. 2024).
Dr. Navarro contends that the district court’s factual
findings resolved “mixed questions” of law and fact such that
we owe the district court’s decision only due deference. See
United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). That
is incorrect. The district court’s factual findings and legal
conclusions are analytically distinct and were announced

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separately. Dr. Navarro recognized as much before the district
court. In seeking an evidentiary hearing, he argued expressly
that “whether the former President in fact directed Dr. Navarro
to assert the presidential privilege on his behalf is a question of
fact[.]” J.A. 819. This court reviews factual findings relevant
to an asserted claim of privilege for clear error. See FTC v.
Boehringer Ingelheim Pharms., Inc., 892 F.3d 1264, 1267
(D.C. Cir. 2018).
A
The questions before this court are narrowed considerably
due to three admissions made by Dr. Navarro.
First, Dr. Navarro concedes that the district court, rather
than a jury, was responsible for deciding whether executive
privilege had been invoked and whether such invocation
excused his default. See Nov. 4, 2022, Hr’g Tr., ECF No. 64,
at 10:11–12 (“[T]here needs to be an evidentiary
proceeding[.]”); J.A. 608–609 (moving the district court to
“hold an evidentiary hearing”); see generally Opening Br.
(raising no challenge to the district court’s procedure).
Second, Dr. Navarro agrees that executive privilege must
be affirmatively invoked on a subpoena-by-subpoena basis and
does not arise automatically or by implication. See Nov. 4,
Hr’g Tr. at 73:6–9 (“[T]his does come down to whether or not
President Trump instructed Dr. Navarro to invoke executive
privilege.”); Aug. 28, Hr’g Tr. at 97:1–8 (agreeing that “an
invocation as to one subpoena does not apply to a different
subpoena”); Oral Arg. Tr. 9:22–10:12 (reaffirming before this
court that his “position in district court” was that there must be
a “subpoena specific invocation of privilege,” and stating that
“still is” his position on appeal).

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Third, Dr. Navarro admits that at least some of the
information sought by the subpoena pertains to statements in
his privately published and publicly released three-volume
Navarro Report, his book published after he left the
government, and his multiple public talks, none of which are
protected by executive privilege. See J.A. 962 (conceding
before the district court that the Select Committee’s subpoena
sought “non-official/personal documents”); Oral Arg. Tr.
23:20–24:1 (conceding before this court that he could not make
“any argument” that information about his public statements or
publications are privileged).
Dr. Navarro’s concessions are well founded. To start, this
court has long recognized that a “trial court faced with a pretrial
motion to dismiss the indictment because of immunity granted
by Federal or State Governments * * * can hold a pretrial
evidentiary hearing” to resolve that claim. United States v. De
Diego, 511 F.2d 818, 823–824 (D.C. Cir. 1975); see also
United States v. Bulger, 816 F.3d 137, 146 (1st Cir. 2016)
(“[O]ur across-the-board research suggests that resolving a
defendant’s claim that he is immune from prosecution pretrial,
as opposed to at trial, is more the norm than the exception.”).
In addition, the Supreme Court has said directly that
executive privilege must be invoked. See, e.g., Cheney, 542
U.S. at 389 (“Executive privilege is an extraordinary assertion
of power not to be lightly invoked. Once executive privilege
is asserted, coequal branches of government are set on a
collision course.”) (formatting modified); United States v.
Nixon, 418 U.S. at 713 (“If a President concludes that
compliance with a subpoena would be injurious to the public
interest[,] he may * * * invoke a claim of privilege[.]”). This
court has too. In re Sealed Case, 121 F.3d at 744 (“The
President can invoke the [presidential communications]
privilege when asked to produce documents[.]”); Thompson,

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20 F.4th at 26 (describing the President’s “right to assert
executive privilege”).
To be sure, we have referred to the presidential
communications privilege as a “presumptive” protection. E.g.,
Dellums v. Powell, 561 F.2d 242, 246 (D.C. Cir. 1977). But
the term “presumptive” denotes only that the privilege is
qualified and may be overcome—not that it springs into effect
immediately and spontaneously regardless of what a President
might choose. See United States v. Nixon, 418 U.S. at 713–714
(Once the President “invoke[s] a claim of privilege on the
return of [a] subpoena[,]” a court must determine whether the
party seeking the information has “made a sufficient showing
to rebut the presumption” of privilege.); In re Sealed Case, 121
F.3d at 744 (“If the President [invokes the privilege], the
documents become presumptively privileged.”).
Finally, the law is settled that executive privilege extends
only to the provision of confidential advice by select
presidential advisers; it does not apply to public statements or
matters discussed in a personal capacity. See, e.g., Mazars, 140
S. Ct. at 2032–2033; In re Sealed Case, 121 F.3d at 752.
B
Against that backdrop, we reject Dr. Navarro’s separation-
of-powers defense. The separation-of-powers problem that Dr.
Navarro asserts depends on there being a clash between the
Executive’s invocation of privilege and Congress’s
enforcement of its subpoena for the assertedly privileged
material. See Opening Br. 13. No such clash occurred here.
We hold that the authority to invoke executive privilege
rests with a president or his designee. In that regard, the district
court did not clearly err in finding as a matter of fact that neither
President Trump nor a designee invoked executive privilege as

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19
to the Select Committee’s subpoena to Dr. Navarro. Dr.
Navarro’s executive-privilege claim also fails for the
independent reason that he defaulted on his obligation to
produce documents and testimony that could not have been
subject to executive privilege at all. As a result, Dr. Navarro’s
separation-of-powers defense falls apart.
1
The district court had authority to resolve whether
executive privilege had been invoked as to the Select
Committee’s subpoena to Dr. Navarro. And it correctly
concluded that only the President or his designee could invoke
the privilege.
a
Dr. Navarro mounts two threshold challenges to the
district court’s authority to resolve the privilege issues in this
case, both of which reason that the Judicial Branch’s
involvement in this suit itself amounts to a violation of the
separation of powers. Those arguments fail.
First, Dr. Navarro argues that federal courts cannot decide
at all whether executive privilege has been invoked. Opening
Br. 36. Not so. As the Supreme Court has held, “it is the
province and duty of this Court ‘to say what the law is’ with
respect to the claim of privilege presented[.]” United States v.
Nixon, 418 U.S. at 705 (quoting Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177 (1803)); accord Committee on the
Judiciary, U.S. House of Representatives v. McGahn, 968 F.3d
755, 769 (D.C. Cir. 2020) (en banc) (In adjudicating a claim of
testimonial immunity, the court “does not arrogate any new
power to itself at the expense of either of the other branches but
rather plays its appropriate constitutional role[.]”).

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20
To get around that precedent, Dr. Navarro retreats to
arguing that a court cannot prescribe how executive privilege
may be invoked. Opening Br. 33. That cannot be right.
To start, there is no relevant daylight between deciding
whether privilege has been invoked (which our precedent
allows) and how its invocation can be evidenced. A court, after
all, could never hold that privilege was not invoked without
identifying a basis for that conclusion grounded in what the law
requires for an invocation of privilege and whether such an
invocation was demonstrated as a factual matter.
Anyhow, drawing the line at the “how” of privilege
invocations would be an odd result. The Judiciary is no
stranger to disputes over executive privilege. When necessary,
this court has repeatedly established criteria pertaining to the
who, what, and when of executive privilege invocations before.
See, e.g., In re Sealed Case, 121 F.3d at 751–752 (holding that
“communications made by presidential advisers in the course
of preparing advice for the President come under the
presidential communications privilege, even when these
communications are not made directly to the President”);
Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108,
1112 (D.C. Cir. 2004) (holding that “the principles underlying
the presidential communications privilege limit its reach to
documents and other communications ‘solicited and received’
by the Office of the President, and thus do not extend to agency
documents that are not submitted for Presidential
consideration”). Likewise, the Supreme Court has intervened
to determine whether even an indisputably valid assertion of
executive privilege can prevail over the competing need for
privileged material in a criminal case. See United States v.
Nixon, 418 U.S. at 713 (An “assertion of privilege must yield
to the demonstrated, specific need for evidence in a pending
criminal trial.”).

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21
Nor does judicial scrutiny of the form of executive
privilege’s invocation carry any distinct separation-of-powers
baggage. The Supreme Court has prescribed the terms under
which the Executive can invoke the analogous state secrets
privilege. See Reynolds, 345 U.S. at 7–8 (“There must be [a]
formal claim of privilege, lodged by the head of the department
which has control over the matter, after actual personal
consideration by that officer.”) (footnotes omitted). So too for
how Congress can invoke its legislative subpoena power. See
Mazars, 140 S. Ct. at 2031–2032.
Courts, after all, could not discharge their Article III
adjudicatory function if forced to accept at face value mere
claims of executive privilege put forth by any employee with
some asserted presidential advisory role. See United States v.
Nixon, 418 U.S. at 712 (“[T]he allowance of the privilege to
withhold evidence that is demonstrably relevant in a criminal
trial would * * * gravely impair the basic function of the
courts.”).
Equally problematically, without setting terms on how a
claim of privilege can be substantiated, courts could mistakenly
apply the privilege against the will of the President based solely
on a defendant’s say-so. But an Article III court cannot
exercise an authority to invoke privilege that is vested
exclusively in the President. And without requiring proof of
the privilege’s proper assertion, a court would risk stepping
into the Executive’s domain. A court, in other words, cannot
simply take a defendant at his word that the President invoked
privilege because doing so would impermissibly tangle
separation-of-powers lines.
Second, Dr. Navarro objects that, at a minimum, courts
must require the Political Branches “to seek accommodation

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22
through good faith negotiations” over a privilege claim before
weighing in. Opening Br. 27. That contention is to no avail.
To be sure, efforts at accommodation are the preferred
approach in interbranch disputes. See Mazars, 140 S. Ct. at
2031 (extolling the “tradition of negotiation and compromise”
between Congress and the President over subpoenas for the
President’s personal papers); United States v. American Tel. &
Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (“[E]ach branch
should take cognizance of an implicit constitutional mandate to
seek optimal accommodation through a realistic evaluation of
the needs of the conflicting branches in the particular fact
situation.”).
But as it turns out, the Political Branches are entirely in
accord this time. Congress held Dr. Navarro in contempt. And
the Executive both informed Dr. Navarro that his assertion of
executive privilege was unjustified and exercised its exclusive
authority to bring this prosecution. So this case does not
confront the court with an interbranch conflict. See Thompson,
20 F.4th at 37.
In addition, extensive efforts at accommodation occurred.
The Select Committee afforded then-former President Trump
ample opportunity to invoke executive privilege if he so chose.
The district court found that, before this case began, President
Trump had notice both of the Select Committee’s subpoena to
Dr. Navarro and the Committee’s determination that he was not
protected by executive privilege. Then-former President
Trump chose to remain silent on the subject. Contrast Nixon
v. GSA, 433 U.S. at 430 (former president filed affirmative civil
suit); Thompson, 20 F.4th at 22 (same); Dellums, 561 F.2d at
244 (former president filed motion to quash); J.A. 2235 (then-
former President Trump publicly directing Dr. Navarro “to

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23
protect executive privilege” in response to a different
subpoena).
The district court also found as fact that the Select
Committee repeatedly tried to accommodate Dr. Navarro’s
assertion of privilege, seeking clarification on the nature and
scope of his claims and offering to discuss ways to preserve his
ability to assert any appropriate privilege in response to
specific questions. See Navarro I, 651 F. Supp. 3d at 226. It
was Dr. Navarro who flatly refused to engage. And nothing in
the separation of powers requires rewarding that behavior.
Finally, this court afforded the Executive a long extension
of time to reconsider the government’s position in this case and
to decide whether it wished to dismiss the appeal. The
government did not ask for additional time, and it chose only
to strike its brief. Again, no claim of privilege was asserted.
For all those reasons, we conclude the district court had
the legal authority in this case, consistent with the separation
of powers, to determine whether, under the facts and law,
executive privilege had been invoked for the Select
Committee’s subpoena.
b
In deciding that executive privilege had not been asserted
in Dr. Navarro’s case, the district court ruled that the privilege
(1) must be claimed by the President (current or former) or an
official authorized by the President to claim it (2) after some
level of personal consideration by the President and (3) by
some affirmative act or conduct by the President or his
designee. See Aug. 30 Hr’g Tr. at 11:2–13:6. We agree that
the first prong of the test is required. And because Dr. Navarro
never satisfied even that requirement, see Part IV.B.2, infra, we

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need not address whether the second and third factors are
required.
This court has not yet definitively determined the criteria
for an invocation of executive privilege. In Dellums v. Powell,
561 F.2d 242 (D.C. Cir. 1977), we observed that “there is much
to be said for the proposition that * * * the presidential
privilege must be claimed by the president or an official”
designee, id. at 248. But it was “not necessary for us to decide
that issue” in Dellums. Id. So this court’s dictum has remained
just that. See Protect Democracy Project, Inc. v. NSA, 10 F.4th
879, 886 n.1 (D.C. Cir. 2021) (“The issue of whether a
president must personally invoke the presidential
communications privilege remains an open question.”)
(formatting modified).
We agree with the district court that, at a minimum, the
privilege must be claimed by the President (current or former)
or an official authorized by the President to claim it. That is
because executive privilege belongs to the Presidency. The
privilege is “necessary to provide the confidentiality required
for the President’s conduct of office.” Nixon v. GSA, 433 U.S.
at 448 (emphasis added) (quotation marks omitted). It
facilitates “the effective discharge of a President’s powers[.]”
United States v. Nixon, 418 U.S. at 711 (emphasis added). And
it arises by implication “from the nature of enumerated
powers” under Article II. Id. at 705–706. Those powers, of
course, are vested in the President and no one else. See U.S.
CONST. ART. II, § 1, cl. 1. As a result, executive privilege is
the President’s to invoke or not.
Further, executive privilege is not just an Article II
accoutrement. Its invocation is “an extraordinary assertion of
power” that can set the coequal branches “on a collision
course.” Cheney, 542 U.S. at 389. It follows from the

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25
simultaneous delicacy and potency of such invocations that the
power to assert the privilege must reside with the politically
accountable and constitutionally empowered President. See
also Oral Arg. Tr. 12:24–13:1 (counsel for Dr. Navarro
agreeing that executive “privilege belongs to the President to
invoke or not”).
To be sure, executive privilege’s protection extends
beyond the President himself to his immediate advisers. See
Judicial Watch, 365 F.3d at 1123. But that is not because those
advisers have any claim of privilege in their own right. Rather,
executive privilege may attach to their documents and
testimony only when the President decides that doing so is
necessary to avoid “imped[ing] the President’s ability” to
obtain the information and advice necessary “to perform his
constitutional duty.” In re Sealed Case, 121 F.3d at 751
(quotation marks omitted). That is why proximity to “sensitive
Executive Branch deliberations[,]” Mazars, 140 S. Ct. at 2032–
2033, within the Office of the President is a prerequisite for the
privilege’s protection. Judicial Watch, 365 F.3d at 1116–1117
(rejecting as “unprecedented and unwarranted” the proposition
that the presidential communications privilege would extend to
communications among persons “twice removed from the
President” that “were never received by immediate White
House advisers in the Office of the President”). Resting the
power to invoke the privilege in the hands of the President,
whose functioning that confidentiality protects, keeps the
privilege within its proper constitutional bounds.1F
2
2 While the Executive Branch has decamped from this case,
previous Executive Branch statements presume presidential
invocation of the privilege. See Prosecution for Contempt of
Congress of an Executive Branch Official Who Has Asserted a Claim
of Executive Privilege, 8 Op. O.L.C. 101, 129 (1984) (discussing

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26
Because executive privilege belongs to the Presidency,
arises from the President’s Article II powers, singularly
protects the President’s ability to perform his assigned
constitutional functions, and so extends only to those within the
Office of the President who directly support the President’s
exercise of those powers, we hold that only a President or his
designee may invoke executive privilege.
2
Having settled that the district court (1) had both the
authority and duty to determine whether executive privilege
had been invoked and (2) correctly held that only the President
or his designee could invoke the privilege, the only remaining
question is whether the district court clearly erred in finding
that no such invocation occurred. Dr. Navarro has never
argued that a designee authorized to invoke executive privilege
on President Trump’s behalf instructed him to assert executive
privilege for the Select Committee’s subpoena. So we review
only the district court’s factual finding that President Trump
did not invoke executive privilege for that subpoena.
Dr. Navarro bears the heavy burden of persuading this
court that the district court’s factual finding that privilege had
not been invoked was clearly erroneous. Bryant, 111 F.4th at
108. “This standard of review is highly deferential.” United
States v. Hale-Cusanelli, 3 F.4th 449, 455 (D.C. Cir. 2021). Dr.
“executive officials who assert claims of [presidential
communications] privilege at the direction of the President”)
(emphasis added); Congressional Oversight of the White House,
2021 WL 222744, at *35 (“[I]n addition to invoking executive
privilege over particular questions, the President can also direct”
subordinates to assert testimonial immunity.) (emphasis added)
(quotation marks omitted).

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27
Navarro has not overcome that deference because the record in
this case does not come close to leaving us with a “definite and
firm conviction that a mistake has been committed.” Bryant,
111 F.4th at 108–109 (quotation marks omitted).
To begin, the district court correctly concluded that Dr.
Navarro first asserted executive privilege unilaterally without
consulting with or receiving direction from President Trump.
Dr. Navarro, in fact, asserted executive privilege within three
minutes of learning that the Select Committee intended to
subpoena him and before he had even seen the subpoena’s
content. Dr. Navarro also concedes that he did not
communicate with President Trump or anyone close to
President Trump during those three minutes. See Oral Arg. Tr.
13:15–18 (Q: “Did he talk to the President?” A: “Not in those
three minutes.”); id. at 13:19–13:23 (conceding that nothing in
the record suggests “the President was alerted to the existence
of the subpoena in those three minutes”).
Dr. Navarro instead contends that President Trump later
directed him to assert executive privilege in a brief phone call
before the subpoena’s deadlines. At the evidentiary hearing,
Dr. Navarro testified that, “during that call, it was very clear
that the privilege was invoked, very clear.” Aug. 28, Hr’g Tr.
at 64:15–16.
But as the district court observed, Dr. Navarro “provided
no details” or other factual substantiation at all about the
content of that conversation to show what supposedly made the
matter so clear. Aug. 30, Hr’g Tr. at 20:5. Dr. Navarro’s empty
record gives this court no basis to second-guess the district
court’s decision to assign little weight to his self-serving,
“conclusory[,]” and “nondescript” live testimony. Id. at 19:20,
24:24.

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28
All of the other evidence before the district court undercuts
Dr. Navarro’s contention that executive privilege was invoked.
For example, Dr. Navarro testified that there was an
official “protocol” under which questions about the privilege
were routed to President Trump through Elizabeth Harrington.
Tellingly, Dr. Navarro’s evidence of how that protocol worked
was based on what happened when he had previously received
a different subpoena from a different congressional committee
on a different subject matter. The result was an extensive paper
trail of communications with attorneys and aides to former
President Trump confirming that “POTUS wants to exert
executive privilege over this subpoena[,]” J.A. 2233, as well as
a public statement from President Trump saying as much, J.A.
2235. Dr. Navarro produced no such paper trail, public
statement, or anything similar with respect to the Select
Committee’s subpoena. Furthermore, grand jury transcripts
submitted by the government show that, while Ms. Harrington
spoke to Dr. Navarro about the Select Committee’s subpoena,
she “d[oes]n’t believe [she] even brought it up to” President
Trump. J.A. 2604.
The “protocol” also played out quite differently for other
aides to former President Trump who received subpoenas from
the Select Committee. Justin Clark, one of President Trump’s
attorneys, testified to the grand jury about his role in
responding to the Select Committee’s subpoenas. Mr. Clark
testified that he would send a subpoena recipient “a letter on
the former president’s behalf” explaining President Trump’s
view that the requested information was “protected from
disclosure by * * * the presidential communications” privilege
and that “President Trump believes that [the recipient] is
immune from compelled Congressional testimony on matters
related to [their] official responsibilities.” J.A. 2554–2556.
Mr. Clark was explicit that he sent no such letter to Dr.

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Navarro, never spoke to Dr. Navarro about the Select
Committee’s subpoena, and was “not aware of anybody” else
communicating with Dr. Navarro on the subject. J.A. 2577.
Finally, before the district court, Dr. Navarro relied
heavily on a letter from Evan Corcoran, another attorney to
President Trump. But the district court regarded that letter as
the “most compelling evidence” that President Trump had not
invoked executive privilege as to the Select Committee’s
subpoena. Aug. 30, Hr’g Tr. at 24:8–9. That letter—which
was drafted after Dr. Navarro had failed to comply with the
subpoena, after the House of Representatives had held him in
contempt, and after the district court first denied Dr. Navarro’s
motion to dismiss the indictment—states only that Dr. Navarro
and President Trump had “discussed matters of critical
importance” regarding “trade and manufacturing policy and a
wide variety of other subjects[.]” J.A. 2360. The letter then
“confirms President Trump’s position that, as one of his senior
advisors, [Dr. Navarro] had an obligation to assert executive
privilege on [President Trump’s] behalf[.]” J.A. 2361.
Notably, the letter does not state that President Trump ever
directed Dr. Navarro to assert executive privilege with respect
to the Select Committee’s subpoena in their earlier phone call,
or at any other time. Nor does the letter state that Dr. Navarro
was a confidential adviser to the President with respect to the
2020 election, the Electoral College vote, or the events of
January 6th. See J.A. 809 (Dr. Navarro promoting the Navarro
Report “in his capacity as a private citizen”). Because Mr.
Corcoran wrote the letter after the court had held that Dr.
Navarro needed to come forward with evidence that President
Trump directed him to invoke executive privilege, the letter’s
critical omissions carried weight with the district court: “This
was an opportunity to clearly state that the President had

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formally invoked or claimed executive privilege, but that is not
what the letter says.” Aug. 30, Hr’g Tr. at 24:16–18.
Weighing all that evidence, the district court concluded as
a matter of fact “that there was no formal invocation of
executive privilege” as to the Select Committee’s subpoena to
Dr. Navarro by President Trump, “nor any authorization to Dr.
Navarro to invoke the privilege on the President’s behalf.”
Aug. 30, Hr’g Tr. at 25:11–18. That finding was well-
grounded in the record Dr. Navarro presented. We accordingly
sustain the district court’s factual finding that executive
privilege was never invoked by President Trump or a designee
as to Dr. Navarro’s subpoena from the Select Committee.2 F
3
Because President Trump did not, in fact, invoke executive
privilege, neither the Select Committee’s subpoena nor the
prosecution for Dr. Navarro’s contumacy in the face of that
subpoena presents the separation-of-powers concerns of which
Dr. Navarro complains. We accordingly affirm the district
court’s denial of his motion to dismiss on separation-of-powers
grounds.
3
Dr. Navarro has failed to establish his executive-privilege
claim for another, independent reason: Because Dr. Navarro
admits that some of the subpoenaed documents and testimony
pertain to information not subject to executive privilege at all,
3 Notably, Dr. Navarro admitted at oral argument before this
court that he could not identify a single instance in which executive
privilege had protected a subpoena recipient “with as little to show
for his assertion that the President had invoked” the privilege as in
this case. Oral Arg. Tr. 18:25–20:4.

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31
no invocation of executive privilege could have excused Dr.
Navarro’s wholesale default.
The presidential communications privilege “only applies
to communications that [presidential] advisers and their staff
author or solicit and receive in the course of performing their
function of advising the President on official government
matters.” In re Sealed Case, 121 F.3d at 752. It “should never
serve as a means of shielding information” beyond that narrow
remit. Id. The Supreme Court has held specifically that the
presidential communications privilege does not apply to
subpoenas for “private information, which by definition do[]
not implicate sensitive Executive Branch deliberations.”
Mazars, 140 S. Ct. at 2032–2033. A broader view of the
privilege that disregarded the “distinctions between privileged
and nonprivileged information, between official and personal
information” would “risk seriously impeding Congress in
carrying out its responsibilities.” Id. at 2033.3 F
4
Much if not all of the information sought by the Select
Committee’s subpoena targeted information falling outside of
Dr. Navarro’s official bailiwick. As Mr. Corcoran’s letter and
4 The Executive Branch understands a similar limitation to
apply to its claimed testimonial immunity of presidential advisers.
That immunity, in OLC’s view, applies only against a presidential
adviser’s “compelled testimony about their official duties in that
capacity.” Congressional Oversight of the White House, 2021 WL
222744, at *36; see also Testimonial Immunity, 43 Op. O.L.C. at 129
(opining that former White House Counsel could not be compelled
to testify “on matters related to their official responsibilities”); OLC,
Appearance of Presidential Assistant Peter M. Flanigan Before a
Congressional Committee 3 (March 15, 1972),
https://perma.cc/CB2D-RTBW (“[T]he separation of powers
precludes Presidential Assistants from appearing before the
congressional committees unless the inquiry is related to their private
conduct.”).

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other record evidence established, Dr. Navarro’s official duties
and communications with President Trump principally
“pertained to trade and manufacturing policy” during his stints
as Director of Trade and Manufacturing Policy, Director of the
White House Trade Council, and National Defense Product Act
Policy Coordinator. J.A. 2360; see also Aug. 28, Hr’g Tr. at
24:15–25:23 (Dr. Navarro testifying to his responsibilities
coordinating manufacturing response to COVID-19
pandemic).
The Select Committee’s subpoena had nothing to do with
any of that. It principally concerned Dr. Navarro’s public
writings and communications about the Navarro Report and
Green Bay Sweep made after he returned to private life. Dr.
Navarro published and promoted his Report “in his capacity as
a private citizen[.]” J.A. 809. He likewise published and
promoted his book about the proposed Green Bay Sweep after
he had left the White House and had no official duties at all.
And Dr. Navarro’s own response to the Select Committee’s
correspondence implicitly recognized that the requested
evidence in his possession was distinct from his “official White
House communications[,]” of which “the United States
government [was] in possession[.]” J.A. 2648. Dr. Navarro,
in fact, does not dispute that the subpoena sought “non-
official/personal documents.” J.A. 962; see also J.A. 1970
(“I’m not suggesting that every single paper in his possession,
custody or control would have been subject to executive
privilege.”). Instead, he admitted to this court at oral argument
that he had no argument to support his default as to the
subpoena’s requests for information about public statements
made in his private capacity. See Oral Arg. Tr. 23:20–24:1 (Q:
“I’m asking you whether there’s any argument” such
information and statements are privileged? A: “No.”).

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33
In short, Dr. Navarro has acknowledged that even if
executive privilege had been invoked, that would not have
excused his categorical failure to comply with the Select
Committee’s subpoena.
V
Dr. Navarro separately challenges the district court’s
ruling, in granting the government’s motion in limine and in
charging the jury, that a good-faith mistaken belief that
executive privilege had been asserted was no defense to the
charges of willful default. We review de novo the district
court’s interpretation of Section 192. See United States v.
Sheehan, 512 F.3d 621, 629 (D.C. Cir. 2008). For the record,
Dr. Navarro has not argued to this court that he ever had a good
faith belief that the subpoenaed materials he created as a private
citizen, published to the world, and spoke about publicly were
subject to executive privilege.
As to the rest, Dr. Navarro’s argument is foreclosed by
Supreme Court and circuit precedent. Section 192 assigns
criminal liability to those who “willfully” default on a
subpoena to produce records or refuse to answer a question in
a hearing. 2 U.S.C. § 192. Binding precedent from the
Supreme Court and this court establishes that a defendant acts
willfully within the meaning of Section 192 when he
deliberately and intentionally defaults on a subpoena, even if
he subjectively and mistakenly believed his default was lawful.
Almost a century ago, the Supreme Court unanimously
affirmed a Section 192 conviction over a defendant’s objection
that the trial court had erroneously “excluded evidence that in
refusing to answer [a question at a hearing] he acted in good
faith on the advice of competent counsel.” Sinclair v. United
States, 279 U.S. 263, 299 (1929), overruled in part on other

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grounds by United States v. Gaudin, 515 U.S. 506 (1995). The
Court ruled that the defendant’s subjective and “mistaken view
of the law [was] no defense.” Id. Faced with a congressional
subpoena, the defendant “was bound rightly to construe the
statute.” Id. And his “deliberate” and “[i]ntentional” “refusal
to answer” the questions was “sufficient to constitute guilt”
whatever his subjective belief about what the law required. Id.
The Supreme Court has repeatedly reaffirmed that
holding. See United States v. Bryan, 339 U.S. 323, 325–326,
330 (1950) (affirming conviction over defendant’s objection
that her conclusion, on advice of counsel, “that the subpoena
was not valid because the Committee had no constitutional
right to” issue it excused her default, and holding that the
government had established “a prima facie case of wil[l]ful
default” by showing that the defendant “intentionally failed to
comply” with the subpoena) (quotation marks omitted); Quinn,
349 U.S. at 165–166 (Once an asserted claim of privilege is
rejected, “a deliberate, intentional refusal to answer” a question
during subpoenaed testimony will “la[y]” the “foundation” for
“a finding of criminal intent to violate” Section 192.); Watkins,
354 U.S. at 185, 208 (A witness who refuses to comply with a
congressional subpoena for testimony on the ground that the
committee lacks authority to seek it “acts at his peril” because
an “erroneous determination on his part, even if made in the
utmost good faith, does not exculpate him if the court should
later rule” that his defense was invalid.).
This court followed the Supreme Court’s lead in Licavoli
v. United States, 294 F.2d 207 (D.C. Cir. 1961), holding
expressly that “[e]vil motive is not a necessary ingredient of
willfulness” under Section 192, id. at 208. Rather, a
“deliberate, intentional failure, without more,” to comply with
a subpoena is “sufficient.” Id. As a result, a defendant’s
subjective belief that he was not required to respond to a

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congressional subpoena “cannot immunize a deliberate,
intentional failure to appear[.]” Id. at 209.
The district court relied expressly on Licavoli and the
Supreme Court opinions that preceded it in granting the
government’s motion in limine. See Navarro I, 651 F. Supp.
3d at 238–239. Contrary to Dr. Navarro’s assertions, adhering
to that binding precedent was not error. Indeed, we reaffirmed
Licavoli’s holding just two years ago in United States v.
Bannon, 101 F.4th 16 (D.C. Cir. 2024). See id. at 21 (“[E]very
case that addresses the mental state required for a contempt of
Congress conviction firmly supports Licavoli’s holding.”),
reh’g denied, No. 22-3086, 2025 WL 1503223 (D.C. Cir. May
27, 2025), vacated on other grounds Bannon v. United States,
--- S. Ct. ----, 2026 WL 922515, at *1 (Apr. 6, 2026).
Dr. Navarro’s attempts to distinguish that precedent are
unpersuasive.
He suggests that, because Licavoli and Bannon both arose
in the context of advice-of-counsel defenses, their holdings are
cabined to those defenses alone. Of course, the advice on
which Mr. Bannon claimed to rely “was that then-former
President Trump had asserted executive privilege” that
prevented his compliance with the subpoena, Bannon, 101
F.4th at 23, while Dr. Navarro’s defense is his belief “that
President Trump’s purported invocation of executive privilege
excused hi[m]” from complying with the subpoena, Navarro I,
651 F. Supp. 3d at 238–239. So the gap between this case and
Bannon is vanishingly small.
Nor has Dr. Navarro proffered a plausible basis for his
proposed distinction. To start, he contends that an “advice of
counsel defense is not presumed and can be waived, whereas
executive privilege is presumptive[.]” Opening Br. 44. But as
explained above in Part IV.A, and as Dr. Navarro conceded

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below and before this court, executive privilege does not arise
presumptively and must be invoked. See Nov. 4, Hr’g Tr. at
73:5–9; Aug. 28, Hr’g Tr. at 97:1–8; Oral Arg. Tr. 9:22–10:12.
The privilege is “presumptive” only in the sense that it can be
overcome even after being invoked. See United States v.
Nixon, 418 U.S. at 714; In re Sealed Case, 121 F.3d at 744.
That distinction is of no help to Dr. Navarro.
The constitutional underpinnings of executive privilege do
not take it outside binding precedent either. “[S]ection 192
authorizes criminal liability for good-faith but mistaken
assertions of unconstitutionality,” Bannon, 2025 WL 1503223,
at *1 (statement of Katsas, J.), as Supreme Court decisions
confirm, see Sinclair, 279 U.S. at 295 (defendant believed the
committee lacked constitutional authority to issue subpoena);
Bryan, 339 U.S. at 325 (defendant believed “the Committee
had no constitutional right to demand the books and records”).
The only difference, then, between an advice-of-counsel
defense and Dr. Navarro’s individual mistake is that Dr.
Navarro immediately and categorically asserted executive
privilege without consulting anyone, whether counsel or the
President to whom the privilege belongs. And he did so before
even seeing the subpoena and its cover letter that made clear
the subpoena sought some information that Dr. Navarro
concedes is not privileged because he had discussed it publicly
“in [his] recently published book, in interviews with reporters,
and * * * on a podcast[.]” J.A. 2634. That all cuts against Dr.
Navarro’s purported good-faith defense, not in favor of it.

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VI
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.

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