Does Congress have the power to compel presidents and their advisors to disregard executive privilege and force testimony before its committees? That's just one of the substantial constitutional questions raised in United States v. Peter K. Navarro; the Supreme Court gets its first look at the case on April 26.
If the high court does not "Settle good law" in this case and Navarro's conviction is upheld, the doctrine of executive privilege will be irreparably harmed and an important pillar of our system of government's separation of powers will crumble.
Besides the core issue of whether Congress had the legal authority to subpoena him in the first place, other substantial questions related to the privilege include: whether the sitting president can strip a former president of the privilege; what it takes to invoke the privilege on behalf of a former president; and whether a defendant who in good faith mistakenly believes the privilege applies can present evidence of that good-faith belief to the jury to negate the willfulness element of the offense.
The question of whether a sitting president can strip a former president and his advisors of the protections of executive privilege - something President Joe Biden has tried to do with both Trump and Navarro - has never been squarely addressed by the Supreme Court.
Two years ago, when the court declined to answer the question on an expedited basis in Trump v. Thompson, Justice Brett Kavanaugh noted, "A former president must be able to successfully invoke the Presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim." Navarro's appeal of his conviction puts this question squarely before the U.S. Court of Appeals for the District of Columbia, and it cries out for good settled law either from that court or, failing that, the Supreme Court.
In ruling against Navarro on this point, the trial judge relied on a 63-year-old appellate court ruling, which in turn relied on a 1929 Supreme Court decision that was repudiated by the Supreme Court decades ago.
Far more importantly - and Navarro would agree - it's time for the Supreme Court to begin settling "Good law" that will preserve the doctrine of executive privilege and ensure the separation of powers.
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