For years, the Trump way — ignore lawful subpoenas, assert unfounded exemptions from compliance and generally run out the clock on legal claims — has been distressingly successful. Stonewalling has proved a particularly successful strategy in the face of congressional investigations.
But that approach has its limits, on welcome display this week in D.C. federal court, where two judges rendered powerful rulings against Trump advisers Rudy Giuliani and Peter Navarro that amounted to: Stop this nonsense. It’s not nice to fool with federal judges. They possess the power to rule against you, especially when you push the limits.
This week’s first case in point is U.S. District Judge Beryl A. Howell, presiding over a lawsuit brought by two Georgia election workers, Ruby Freeman and her daughter Wandrea ArShaye “Shaye” Moss, who claim Giuliani defamed them when he accused them of tampering with the election results. Giuliani, through his own obstructionism, managed the feat of losing the case before it went to trial. Howell simply ruled against Giuliani, citing his repeated and flagrant failure to comply with his legal obligations to turn over relevant information to the other side.
An experienced lawyer and prosecutor, Giuliani nonetheless “has given only lip service to compliance with his discovery obligations and this Court’s orders by failing to take reasonable steps to preserve or produce” information, wrote Howell, an Obama appointee. “Instead, Giuliani has submitted declarations with concessions turned slippery on scrutiny and excuses designed to shroud the insufficiency of his discovery compliance.”
Howell’s bottom line: Giuliani gets to go to trial — but only on the question of how much money he owes. “Rather than simply play by the rules designed to promote a discovery process necessary to reach a fair decision on the merits of plaintiffs’ claims, Giuliani has bemoaned plaintiffs’ efforts to secure his compliance as ‘punishment by process,’” Howell wrote. “Donning a cloak of victimization may play well on a public stage to certain audiences, but in a court of law this performance has served only to subvert the normal process of discovery in a straightforward defamation case, with the concomitant necessity of repeated court intervention.”
Facing criminal charges in Georgia and other civil lawsuits, Giuliani might have had strategic reasons for sitting on potential evidence, Howell noted, but that isn’t her concern. “Withholding required discovery in this case has consequences.”
Consequences. How sweet a word. We don’t want judges issuing these default judgments cavalierly, but to read Howell’s 57-page opinion is to understand that this is not a judge acting out of pique or even exasperation — she’s protecting the integrity of the legal process.
As was Judge Amit P. Mehta, Howell’s district court colleague presiding over the criminal case against Navarro for contempt of Congress. A Trump economic adviser who became a player in the effort to overturn the 2020 election results, Navarro was subpoenaed by the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol.
Like several other Trump officials, Navarro asserted executive privilege and declined to appear. “President Trump has invoked Executive Privilege in this matter,” Navarro told the committee. “Accordingly, my hands are tied.”
The House voted to hold him in contempt. The Justice Department agreed to prosecute him; he was indicted on two misdemeanor counts, failing to produce documents and failing to appear for testimony. The trial is set for next week.
Mehta, ruling from the bench on Wednesday, said Navarro couldn’t use the executive privilege claim in defending himself because he hadn’t produced enough evidence — any evidence, really — that Trump had asserted executive privilege or ordered Navarro not to comply with the subpoena.
This is clearly correct. There’s no written instruction from Trump, unlike in the case of former White House chief of staff Mark Meadows and communications chief Dan Scavino. Trump hasn’t backed up Navarro’s claim of conversations in which Trump supposedly told him not to comply.
Executive privilege can be claimed only by the actual executive, not a subordinate asserting it for himself. And many legal experts believe the privilege belongs to the incumbent president and can’t be invoked by a president once out of office.
All this is bad news for Navarro’s ability to defend himself against charges that each carry up to a year in prison. But it is admittedly cold comfort for the Jan. 6 committee, which has been disbanded and won’t be able to obtain Navarro’s testimony; there’s no prospect that the House under current GOP leadership would move to do so now.
But, to echo Howell, consequences matter. If Navarro is convicted of contempt, there will be consequences for him — and an ominous lesson for future Navarros. Reckonings take time, but in a system governed by the rule of law, they eventually arrive.
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