“President Biden has determined that an assertion of executive privilege is not in the national interest, and therefore is not justified,” the White House counsel’s office informed Scavino on March 15, according to the newly posted materials.
Biden’s decision is the latest in a string of rejections for Trump advisers seeking to frustrate the select committee by citing executive privilege. The White House has issued similar statements pertaining to former chief of staff Mark Meadows and others who have insisted their proximity to Trump in the closing weeks of his presidency made them immune from testimony. Biden has also repeatedly denied Trump’s own efforts to claim executive privilege over his White House files — a decision repeatedly upheld by federal courts.
The decision to seek criminal charges against Scavino and Navarro is an indication the select committee no longer believes it can obtain their testimony or records through negotiations. The panel detailed its lengthy effort to reach agreement with Scavino in correspondence that began in October and stretched for months, culminating in Sunday’s contempt report.
Scavino is a particularly crucial witness for the committee. He helped draft or post Trump tweets in the weeks after the 2020 election, stoking misinformation about the results and driving attendance at Trump’s Jan. 6 rally, which later morphed into a violent insurrection at the Capitol. The committee also revealed that Scavino spoke multiple times by phone with Trump on Jan. 6 and has insight into his movements that day.
Scavino and Navarro are slated to join Steve Bannon, Meadows and former Justice Department official Jeffrey Clark as the only witnesses held in contempt by the select committee so far. Scavino, Bannon and Meadows were included in the panel’s first wave of subpoenas in September. Bannon and Meadows were both subsequently held in contempt by the House and referred to the Justice Department for criminal charges. The full House hasn’t acted on the motion holding Clark in contempt after he indicated he would invoke his Fifth Amendment right against self-incrimination.
Bannon was quickly charged in November for his refusal to cooperate, while the case against Meadows is still pending. Meadows briefly cooperated, providing thousands of emails and text messages to the committee before reversing course and refusing to appear for a deposition. If the House follows suit and holds Scavino and Navarro in contempt, it will leave two more high-profile charging decisions in the hands of Matthew Graves, the U.S. attorney for the District of Columbia.
The panel has homed in on Scavino’s amorphous role as a both a senior White House official and a prominent campaign operative, who flitted easily between both worlds and often mixed official and political work. The committee says Scavino has no justification for trying to shield testimony related to efforts to keep Trump in office, since the Hatch Act bars such political work by government officials.
“His two distinct roles — as White House official in the days leading up to and during the attack, and as a campaign social media promoter of the Trump ‘stolen election’ narrative — provide independent reasons to seek his testimony and documents,” the committee wrote in its contempt report.
The panel argues Scavino was not conducting “privileged” business when he participated in discussions about pressuring state lawmakers to overturn the 2020 election, when he helped recruit attendance at Trump’s Jan. 6 rally and when he engaged with organizers of the rally about the speaker lineup and his own scheduled remarks.
Much of the select committee’s report documents the extensive, and increasingly fraught, communications between Scavino’s attorneys and the Jan. 6 select committee, beginning in October and continuing into March. The panel sought to schedule multiple depositions with Scavino, only to agree to a slew of extensions as he continued to haggle about the terms of his testimony. Talks broke down by February, when Scavino’s attorneys — Stanley Woodward and Stan Brand, a former general counsel to the House — decried the committee’s tactics.
“Put bluntly, your latest correspondence exemplifies the Select Committee’s pattern and practice of intimidation and disregard for the rule of law, its application to the important function of the House of Representatives, and the important doctrine of Separation of Powers,” they wrote.
The lawyers noted that in Bannon’s case, his attorney Robert Costello ended up becoming a witness in the ultimate criminal cases against him brought by the Justice Department.
In a final letter to the panel on Friday, Brand and Woodward said they were seeking more details about the legal basis for Biden’s decision.
“[W]e respectfully request you inform Mr. Scavino and the Select Committee of any legal authority empowering President Biden to make a final decision as to the assertion of executive privilege with respect to the Congressional testimony of a former President’s close aides,” they wrote. “Otherwise, we respectfully request the President advise Mr. Scavino and the Select Committee that no such legal authority exists.”
Navarro, the committee indicated, similarly conducted nakedly political work that could not be construed as part of his government duties. The panel notes that he crafted a report lodging false claims of election fraud that fed the narratives that Trump attempted to deploy in his effort to subvert his defeat. The select committee revealed that at one point he tried to encourage Meadows to contact Roger Stone, a longtime outside adviser to Trump who helped drive “Stop the Steal” efforts.
“None of the official responsibilities of Mr. Navarro’s positions included advising President Trump about the 2020 Presidential election or the roles and responsibilities of Congress and the Vice President during the January 6, 2021, joint session of Congress,” the panel wrote. “Nor did those official duties involve researching or promoting claims of election fraud. Nevertheless, after the 2020 Presidential election, Mr. Navarro became involved in efforts to convince the public that widespread fraud had affected the election. Federal law did not allow Mr. Navarro to use his official office to attempt to affect the outcome of an election.”
Scavino’s fight with the select committee over his subpoena is not his only legal battle connected to the investigation. He sued in January to prevent Verizon from turning over his phone records to the select committee, but his effort to resist the panel’s subpoena for his documents and testimony had proceeded in near total secrecy. The lawsuit is still pending.
The committee subpoenaed Navarro in February, and the former Trump trade adviser has publicly indicated he will not comply with the panel’s demands, citing concerns about executive privilege. He released a statement Sunday evening indicating his position had not changed.
“My position remains this is not my Executive Privilege to waive and the Committee should negotiate this matter with President Trump,” Navarro said. “If he waives the privilege, I will be happy to comply; but I see no effort by the Committee to clarify this matter with President Trump, which is bad faith and bad law.”