DOJ Is Suing Peter Navarro (But Not Ivanka or Mark Meadows)
Yesterday, DOJ filed suit against Peter Navarro for violating the Presidential Records Act by failing to provide the National Archives with the contents of his personal ProtonMail account on which he did official business.
It’s a nifty lawsuit. After laying out that he’s a Covered Person under the Presidential Records Act for the entirety of the Trump Administration, then laying out the requirement that copies of any presidential business conducted on non-official accounts be shared with the Archives, it then describes how Navarro didn’t comply with the PRA specifically as regards (at least) a ProtonMail account he used.
6. While serving in the White House, Mr. Navarro used at least one non-official email account—an account hosted by the non-official service ProtonMail—to send and receive messages constituting Presidential records.
7. Mr. Navarro did not copy each email or message constituting Presidential records that was sent or received on his non-official account or accounts to his official government email account.
8. Following the end of the Trump Administration, the Archivist, through the General Counsel of the NARA, attempted to contact Mr. Navarro to secure the Presidential records that Mr. Navarro had not copied to his government email account. Mr. Navarro did not respond to NARA’s communications.
9. Prior to filing this suit, in an effort to avoid litigation, Department of Justice counsel contacted Mr. Navarro by email and United States mail to secure the Presidential records that Mr. Navarro had not copied to his government email account. Discussions with Mr. Navarro’s counsel to secure the return of Presidential records ultimately proved unsuccessful. Mr. Navarro has refused to return any Presidential records that he retained absent a grant of immunity for the act of returning such documents.
DOJ is very coy about the timing of all this. Possibly, when they asked Navarro to comply, they didn’t know about the ProtonMail account. But since then — and since the time Navarro very loudly lawyered up after being charged in contempt — DOJ asked Navarro for the material he hadn’t shared.
And Navarro, now represented by counsel, responded that he wouldn’t share the emails unless DOJ immunized him for any criming he did on ProtonMail. In response to which, DOJ very politely informed Navarro that by law, those ProtonMails, including any evidence of criming he did on them, are the property of the Federal Government.
The PRA is notoriously toothless for forcing your Navarro or Ivanka or Jared or Meadows types who refuse to use official accounts for Federal business. (Though Andrew McCabe made sure to apply some teeth to the PRA with Jared and Dan Scavino within days after the Biden inauguration; records were not archived properly for others, including Kellyanne Conway and Kayleigh McEnany.) It is toothless, that is, until such time as the affirmative refusal to comply with it could be deemed obstruction of a criminal investigation, the kind of criminal investigation that Navarro may have specifically in mind when he demanded immunity for giving what DOJ maintains is Federal property to the people who own it.
Maybe Navarro, now represented by counsel, thinks that whatever criming he did on his ProtonMail account carries a greater criminal penalty than obstruction would.
This lawsuit is similar to a lawsuit against Steve Wynn to get him to register under FARA, but one on which the legal issues are likely to be much clearer. If and when DOJ wins the lawsuit, they can then charge the person with violating the underlying law, which in the Wynn case might have real teeth.
But they may not have to wait that long with Navarro. They’ve laid a case that Navarro is withholding materials in an effort to withhold evidence of criming from NARA. Who knows? Perhaps his new lawyer will rethink the wisdom of demanding immunity.
As interesting as the fact that DOJ sued Navarro is, it is just as interesting that they have not, yet, sued Ivanka and Mark Meadows, both of whom had similarly failed to turn over the contents of their personal accounts to NARA by the time the January 6 Committee came looking for them. Unlike Navarro, though, both showed signs of trying to comply last year.
The fact that DOJ hasn’t sued Ivanka and Meadows may suggest that a great deal of incriminating data for DOJ’s investigation of January 6 has now been delivered to NARA, where DOJ can obtain it with covert warrants that shield its investigation.
Thanks Ms. Wheeler. This post illustrates a clever tactical innovation by DofJ. Between this approach, possibly obtaining the content of Jones’ phone, and Mr. Cipollone being more forthcoming in a grand jury setting, the Justice Dept may soon be able to file cases betting that their base of evidence is going to grow rapidly.
[DOJ] “… may soon be able to file cases betting that their base of evidence is going to grow rapidly.”
The following is probably just pedantry, flowing from an overly literal reading of the above:
DOJ has shown no inclination at all in the area of the coup attempt to file cases on the basis of evidence that they don’t yet possess.This by-the-book approach seems to be working. And I can’t see why they’d change their approach now.
Demanding immunity for giving up records Navarro is already obligated to deliver up seems to be a tell that Navarro committed crimes and he knows it. His position seems well beyond the usual Trumpist mannerism that rules are for suckers. But it’s a framing Navarro chose.
It also implies that Navarro was not criming alone: he wasn’t writing notes to himself. If he stops obstructing justice to protect higher ups, he doesn’t want to go down just because he helps them go down.
One reason I’m interested in how coy DOJ is about timing is whether they IDed the ProtonMail account specifically in their investigation, via others’ content/emails.
ProtonMail doesn’t do any good if you’re mailing a Gmail account.
“ProtonMail doesn’t do any good if you’re mailing a Gmail account.”
Another of your elegant understatements.
Not true. ProtonMail has a feature to enable pairwise generation of asymmetric encryption keys to secure comms outside of the Proton family, but it’s inconvenient and requires discipline. I don’t expect Navarro went to such lengths.
Yes. But many people who have these encryption-enabled accounts are assuming that their juicy messages to someone at aol.com are also protected – without this cumbersome key exchange.
These crims aren’t the smartest dimwits in the club. They’re just the epitome of the residents.
IDK anything about Protonmail, but is there a prima facie case that this was used by him for government business, and if so was nothing at all archived in any way?
“And Navarro, now represented by counsel, responded that he wouldn’t share the emails unless DOJ immunized him for any criming he did on ProtonMail. In response to which, DOJ very politely informed Navarro that by law, those ProtonMails, including any evidence of criming he did on them, are the property of the Federal Government.“
What was his lawyer thinking? Aside from allowing his client to confirm their crime? IANAL.
Yeah, “There’s nothing important here…but my client wants immunity to turn it over to you!” doesn’t seem like the smartest message to be telegraphing to investigators and prosecutors.
If they make a dark comedy about Navarro’s life post-Trump, this will be one of the funniest episodes ever. I mean, how much can one man and his lawyers flail and fail?
I guess maybe they hire about the same quality of lawyers as Alex Jones?
I’m currently of the opinion that Navarro’s lawyer(s) are of a higher quality than Reynal et al in Texas. They almost certainly are going to do a better job than Navarro could do no his own when it comes to applications of the 5th Amendment. Regrettably, they may not be as boned up on 4th Amendment exceptions when it comes to discovery and production in civil cases…yet.
What “4th Amendment exceptions when it comes to discovery and production in civil cases”? Again with the 4th Amendment in civil cases? Where do you come up with this stuff?
NARA has long been fraught, especially with electronic records, but a fundamental observation is that DoJ’s assertion that every text message is a federal record is not statutorily correct.
NARA offers some limited guidance specifically about text messages, and the issue is certainly not as clear cut as they suggest.
It’s true this is a novel approach in the face of years of abuse by government officials from both parties, and the time may be ripe to force this particular issue in the courts.
When you say “text messages” may not be statutory federal records, does that include emails? (Protonmail is email) Young people have retrained me to use text instead of email but I still don’t see what the difference is. They’re both text and they both make your phone beep. I get why email and text are less invasive that voice calls but I don’t get the distinction between the two.
They are both Federal Records.
From the National Archives’ website:
That phrase “regardless of form or characteristics” is pretty sweeping.
(Note: they distinguish between Presidential Records and Federal Records, as they are governed by different laws and rules, and have different procedures for retaining them.)
Much more at the link.
Yes. Exactly. And there is indeed a different archiving process between the PRA and FRA. That said, there are still requirements of archiving.
All of which makes the supposed “standard” and “routine” replacement of phones or computers, and voluntary or non-archiving of data by DHS and DoD screaming bullshit.
Absolutely.
The company I worked for ran us through a basic course in records retention (along with on that was an introduction to anti-trust, so we knew what it was), every year. It’s really not that hard: if it has to do with your job, it’s probably a record.
And, yet, people keep confusing the difference between the PRA and FRA. Here is an example.
NARA spends a lot of its time giving guidance to federal workers.
It has an entire guidance page devoted to email records: https://www.archives.gov/records-mgmt/email-mgmt
(NARA has no such guidance portal for text messages specifically.)
It has produced some text message guidance and its current electronic message bulletin is: https://www.archives.gov/records-mgmt/bulletins/2015/2015-02.html
This bulletin is intended but not limited to cover text messaging, chat/instant messaging, messaging functionality in social media tools or applications, voice messaging, and similar forms of electronic messaging systems. It is not intended to apply to electronic mail (email). NARA used to maintain an “Instant Messaging FAQ” that the bulletin replaced: https://www.archives.gov/records-mgmt/initiatives/im-faq.html
Some of NARA’s current email bulletins still in effect include:
https://www.archives.gov/records-mgmt/bulletins/2011/2011-03.html
https://www.archives.gov/records-mgmt/bulletins/2013/2013-02.html
NARA as a statute places obligations on the National Archivist, and through a regime of associated provisions on the various federal agency heads. An entire system has been put in place where each agency, and each major branch of an agency has its own NARA liaison responsible for executing records retention.
The whole structure is intended to work in that the National Archivist rolls out directions to agency heads who then execute the steps necessary for the agency to fulfill NARA obligations. For federal employees not meeting the agency’s requirements, there is the Office of Special Counsel and the federal employee merit board to mete out administrative enforcement; some federal employees are outside of OSC / merit board jurisdiction, and it would fall to the Secretaries/agency heads and/or POTUS itself to drive conformance.
Of course, it’s long been that the most flagrant offenders are the various Secretary-level appointees. This novel approach may be the stick needed to start getting these people in line.
Looking at the document you linked, it seems pretty clear cut to me. “Electronic messages created or received in the course of agency business are Federal records.” And “Electronic messages” include “Text messaging, also known as Multimedia Message Service (MMS) and Short Message Service (SMS)” as implemented in “iMessage, SMS, MMS, on devices such as Blackberry, Windows, Apple or Android devices” and “Google Chat, Skype for Business, IBM Sametime, Novell Groupwise Messenger, Facebook Messaging, Twitter Direct Message, Slack, Snapchat, WhatsApp, Pigeon, Yammer, Jive, or other internal collaboration networks”.
That’s not exhaustive (and the doc says as much) but it does seem pretty instructive. “Hey honey, I picked up the dry-cleaning” probably isn’t a Federal Record. But “Once there’s no more election, there’s no reason why we can’t mix it up. These people are going to get what they’ve been asking for.” is, as would be something like, “Meet at Willard Command Center.” Likewise, communications with Alex Jones might’ve been, “Happy birthday, Alex” which would not be a federal record. But “Tell crowd Biden will be removed one way or another” certainly would be.
Where do you think the guidance is unclear?
“may suggest that a great deal of incriminating data for DOJ’s investigation of January 6 has now been delivered to NARA, where DOJ can obtain it with covert warrants that shield its investigation.”
Fascinating theory, can’t wait to see them all turn on each other like jackals!
Useful and informative as always. As part of the copy-edit brigade, pointing out here that in “…to get him to register under FARA, but one on which the legal issues is likely to be much clearer.” I think should be “…issues are likely…”. FYI
Thanks for this remarkably clear analysis. It illustrates, not for the first time in these pages, why prosecution of complex multi-responded white collar crimes can take a long time with much prosecutorial work and cleverness.
Sue him? Indict him for obstruction, arrest him and request detention because he has committed yet another offense while already on release. Seriously, the offense of obstruction is completed. What is up with suing him?
I read the post as speculating that Rudy may be a target of more significant investigations which DoJ doesn’t want to spoil by being too public.
Maybe that’s not what was meant, though.
This comment should become a blog post!
Thank you for this clarification!
Good question. Any speculation on why suing to get the documents is smarter?
It seems that someone(s) at DOJ don’t have much confidence in the application of the Presidential Records Act in this case…? Or does pursuing obstruction now, for failure to turn over these official data files, impede DOJ discovery for private files that Navarro may have in his possession? Clearly, the long-stretch request for immunity, being telegraphed publicly, is some sort of signal to maybe more than one party involved…
Separate track that provides for mandatory discovery. Possibly not subject to delays as long as criminal appeals. Lower standard of proof.
And, as noted below by someone else, there’s the issue of replevin, to be ruled on with regard to records, presumed to belong to the Federal government, by a Federal court judge…
What if they believe the ProtonMails will be more valuable and necessary than just an obstruction charge?
To me, at least, how does that change the equation, even if so?
If in front of a grand jury it is easier to claim that one has a fear of being subjected to possible serious criminal indictment and therefore invoke a 5th Amendment protection against production that may stick. In a civil suit, maybe not so easy to extend the 5th Amendment protections against self-incriminating production, particularly when the National Archive/USG has a right to those products?
Heh. Also, maybe DOJ has a shortage of criminal prosecutors and grand jury hours to handle Navarro quickly and expeditiously…so give it to the civil courts, with known experts in civil production working on Navarro.
Lol, a GJ presentation on Navarro would take about 20 minutes. Trust me, they have the capacity.
So the tactic of replevin for the documents then is a higher order legal strategy, and not because of resource constraint…
“Replevin” is a fucking joke, replevin is inapplicable. Again, where do you come up with this bunk? You need to slow down a LOT.
But of it’s the DOJ suing here, there’s no point in shielding their investigation by not directly getting a search warrant for Navarro’s emails.
He really should have bleached that email server like DHS, DOD, and USSS did their phones.
Navarro can’t “bleach[] that email server”; he doesn’t control it. ProtonMail is based in Switzerland, so DOJ’s usual investigative techniques that would work for Gmail, Yahoo, Hotmail, etc. aren’t available; and allegedly everything going through ProtonMail is end-to-end encrypted, so breaking into the service doesn’t get you anything, either….
OT: I just caught up a little on Alex Jones trial; it makes me want to hoot and holler. Nothing like making conmen tell the truth under penalty of perjury. And thanks for the text messages. What are the chances his lawyers did that on purpose because Jones is such a piece of work and they don’t like insurrection. Am I missing some gloating somewhere? I would never climb back out of twitter (OCD and all that) so I don’t go there. Am I being naive that it means anything? When have we seen any sleazy rw shit-stirrer face their victims before. Jones is just a half-step down from Roger Stone on my craving-for-justice index.
Probably was accidental on the part of his lawyers – they’re blaming it on a legal assistant/paralegal, though.
They still should have done a proper notice of privileged materials. “Please disregard” doesn’t cut it.
News for those guys, the lawyer is responsible for his secretaries and staff. Never blame it on them.
Re: Alex Jones, NBC reporting the jury has awarded $4.11 million in actual damages, and will now consider punitive damages, which must be no more than 10x actual damages.
No, it is 2X compensatory plus $750K*
*There may, or may not, be attorney fees added on in the end, but that would not factor in the punies to the best of my knowledge.
ABC news is just now reporting $45M punitive.
Mark Meadows?
Why on earth would the DOJ sue the person who’s been cooperating with them for months now?
Mark Meadows is going to get Trump convicted.
Pretty sure it has been asked of you before, but pick a name more differentiated than “Frank”, announce it, or your comments may never again be approved. Seriously, how hard ix this Frank?
Take a look around. Plenty of names just as undifferentiated as mine.
Could it be you just don’t like me because I present views contrary to yours?
Naw, couldn’t be that………..
[Let me refresh your memory before I put you into the Auto-Moderation list: Back on June 30, I left this in the comment you attempted to post:
You clearly ignored that warning and have now proceeded to harass a contributor/moderator. You’ve also decided you may police how moderation works here. Some of the names you believe are undifferentiated are known to us — like the Tom/Thomas who have been commenting here for a long time. You, however, have less than two dozen known comments under three usernames (unless you’ve been sockpuppeting even more than we know). You can change your username to differentiated name and stick with it, or you can leave.
Consider this your final warning. You’ve already been given more than adequate opportunity with five notices to date. /~Rayne]
Could it be that you are just a belligerent that refuses to comply with our rules, and thinks he is special and does not have to? Naw, couldn’t be that….
Thanks for the link to the filing, EW. I read to the end and see that the US asks the District Court to issue a “writ of replevin” for the recovery of government property held by Peter Navarro. IANAL but I understand the term “replevin” to mean the recovery of property wrongfully held by one party. I am familiar with the US asking for writs of replevin in a bunch of 1870s cases on the Oneida Indian Reservation of Wisconsin. The US sought to recover logs cut from the Reservation and sold to non-Natives in near-by Green Bay (see 1874 case of *US v. Cook* at 86 US Reports 591). Ol’ Green Bay Sweep Navarro may have to give up his emails to the US, just like Green Bay lumberman George Cook had to give up his logs in 1874.
Heh. There ya go. “Replevin” is the word of the week! So this is not only about the 5th but the 4th Amendment as well…good catch!
This is an unusual situation, While a subpoenaed party can ask for “act of production” immunity for producing records, if the records are “required records,” there is no Fifth Amendment privilege. There were a series of cases over the last decade deciding that certain records concerning foreign bank accounts were “required records” under the Bank Secrecy Act and the bank account holder could not avail himself or herself of the Fifth Amendment privilege. If anything, there is a much stronger case for records subject to the PRA being “required records.”
I re-read that Jan. 21, 2021 post. What happened with DOJ and Kushner anyway?
[If it’s not okay to use IANAL analogies, just delete this. I’m not trying to be a nuisance but I am genuinely curious about the answer.]
Whenever I watch television, and see the good guy escape the bad guy and start running, with the bad guy in hot pursuit, I always scream at the television – “don’t run! hide right there in the dark and shoot the guy when he runs past!” – but they never do. In this case, if I were Navarro, I would sit down with my lawyer and my Protonmail account and find any email that was genuinely incriminating, contact the recipient (being some other scumbag who hasn’t complied with document requests) and agree to delete the email on both ends, then give the rest to whatever agency wants it. If that’s not what these guys are doing, why? I’m pretty sure Protonmail won’t give it out (or maybe won’t even have it if it’s deleted?) and isn’t under DOJ jurisdiction. Is there some cloudy netherworld where traces of email exist even if they’ve only gone from one Protonmail account to another? Or are they so stupid that they send evidence of criming from Protonmail to a non-Protonmail account?
I sorta agree with this comment!
Only stupid lawyers would participate in such a plan. And only a fool would assume that everyone involved in such a conspiracy had the competence to ensure perfect deletion of all these emails/files/text msgs/vmails, etc, etc from every device and every server that they passed through, etc. Even metadata indicating that just one of these deleted emails once existed might cause such a conspiracy to unravel rather quickly for instance. And if there’s evidence of one such email/text msg/voicemail having been deleted, chances are there’s evidence for many more having been deleted too, all of which would have to be explained some how to investigators. The more people and evidence removal/deletion you include in such a plan, the more likely it will not work in the long run. And there’s a host of other problems with this conspiracy plan, up to and including potential blackmail by your co-conspirator(s) at a later date, being required to commit further and worse crimes as the conspiracy continues, etc, etc.
Of course, there was some period of time where Navarro was his own lawyer so maybe he did try deleting or destroying records—he seems just the type to try this in a panic. And certainly his lawyers leading with “give him immunity and he’ll tell you everything/give you everything he’s got” might indicate that he’s precipitously done something stupid/bad so… Yeah we’ll find out soon enough I suspect.
We can expect that Navarro was in communication with the Alexander-Jones-Chafian wing of the insurrection – hence he is a White House link to that group – as he spoke at the January 5 rally that was organized by Jones and Chafian. He and his speech/rant were introduced by Alexander.