The indictment of Peter Navarro for contempt of Congress violates several provisions of the Constitution and should be dismissed. Navarro has a strong claim of executive privilege that should be decided by the courts before any indictment can lawfully issue. Pictured: Navarro speaks to the media after his hearing in federal court on June 3, 2022 in Washington, DC. (Photo by Tasos Katopodis/Getty Images)
The indictment of Peter Navarro for contempt of Congress violates several provisions of the Constitution and should be dismissed. Navarro has a strong claim of executive privilege that should be decided by the courts before any indictment can lawfully issue.
Either the Justice Department or Congress should seek a judicial ruling that Navarro's claim of executive privilege is invalid. If the court rules that it is invalid and orders him to respond to the congressional subpoena, Navarro should have an opportunity to comply. If he fails to comply with a judicial order, he can either be indicted or held in contempt by the court. But absent a judicial order, he cannot lawfully be indicted for invoking executive privilege and refusing to reveal arguably privileged material just because a committee of Congress, controlled by Democrats, has voted that he should. It is not enough to allow him to appeal after the fact, because information, once revealed, cannot be erased. He is obliged to claim privilege now and refuse to respond. That is not a crime. It is the constitutionally correct action.
Navarro's indictment violates several key constitutional rights, including due process, fair warning and executive privilege. It also violates the separation of powers, under which the courts have the authority to resolve conflicts between the legislative and executive branches over claims of executive privilege in response to legislative subpoenas. Due process and fair warning require that these issues first be resolved by the courts before an indictment can be issued.
The Biden Justice Department knows the law and it should not be acting lawlessly to make political points. I do not support the events of January 6, 2021, as do many Americans. Congress has the right to investigate them and issue appropriate subpoenas, but they must comply with the Constitution. Legitimate ends do not justify illegitimate means, and issuing an indictment of a former executive decision without first obtaining a judicial order is an illegitimate tactic.
Navarro should move to dismiss the indictment and the court should grant his motion. In an age of partisan law enforcement, however, it is far from certain that neutral justice will be done. Some courts have been caught up in result-oriented injustice: they are understandably so opposed to what happened on January 6 and so determined to assure it will never happen again, that they are motivated to allow others or themselves to take shortcuts and deny due process and other rights to anyone allegedly complicit in these events. That is not the way the system is supposed work and it is inconsistent with constitutional justice.
The Bible admonishes judges not to "recognize faces." That command is the origin of the blindfolded statue of Lady Justice. But in our age of pervasive partisanship, too many judges peek out their blindfolds and rule differently based on the faces and political affiliations of the litigants. Every ruling and decision — whether by a judge or Justice Department official — must pass the "shoe on the other foot test." It must be the same regardless of face, name, race, ethnicity, religion, gender or political affiliation. So the question must be asked: would this Justice Department have indicted a Democratic former executive official who claimed executive privilege in response to a Congressional subpoena? We may learn the answer if the Republicans gain control of either house later this year and start issuing subpoenas for officials in the Biden White House. I hope it doesn't come to that, because two wrongs do not make a right. But it may, because a dangerous precedent established by one party in control is likely to be used by the other party when it gains control.
Indicting a former executive official who has claimed privilege without first securing a judicial ruing is an extremely dangerous precedent. It is dangerous not only to former government officials but to ordinary citizens. Consider a citizen who refuses to answer Congressional questions about conversations with her priest or medical doctor — or a lawyer who refuses to disclose confidential information he received from a client. If this indictment is allowed to stand, these citizens too could be indicted before their claims of privilege were adjudicated by a court. A dangerous precedent indeed — to the rule of law, the Constitution and the rights of all Americans.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Case for Color-Blind Equality in an Age of Identity Politics. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow," on Rumble.