A federal appeals court panel on Wednesday rejected a bid by former Trump White House adviser Peter Navarro to retain hundreds of government records despite a judge’s order to return them promptly to the National Archives.
“There is no public interest in Navarro’s retention of the records, and Congress has recognized that the public has an interest in the Nation’s possession and retention of Presidential records,” the three-judge panel of the D.C. Circuit Court of Appeals concluded in a unanimous two-page order.
The Justice Department sued Navarro last year, seeking to reclaim hundreds of records — contained in Navarro’s personal ProtonMail account — that the government said should have been returned to the National Archives after the Trump administration came to an end in January 2021.
Navarro acknowledged that at least 200 to 250 records in his possession belong to the government, but he contended that no mechanism exists to enforce that requirement — and that doing so might violate his Fifth Amendment rights against self-incrimination. Last month, U.S. District Court Judge Colleen Kollar-Kotelly rejected that claim, ordering Navarro to promptly return the records he had identified as belonging to the government.
But Navarro appealed the decision, rejecting the notion that the Justice Department had any legitimate mechanism to force him to return the records. And he urged the court to stay Kollar-Kotelly’s ruling while his appeal was pending. But the appeals court panel — which included Judges Patricia Millett and Robert Wilkins, both appointees of President Barack Obama, and Judge Neomi Rao, an appointee of President Donald Trump — rejected Navarro’s stay request.
Within minutes, Kollar-Kotelly put the squeeze on Navarro, ordering him to turn over the 200 to 250 records “on or before” Friday. She also ordered him to perform additional searches or presidential records that might be in his possession by May 8, with further proceedings scheduled for later in the month.
The flurry of filings is the latest twist in a saga that began when the National Archives discovered that Navarro had relied on a ProtonMail account to do official government business — the result of a congressional investigation into the Trump administration’s handling of the coronavirus crisis.
Navarro is also trying to fend off criminal charges for defying a different congressional investigation — the probe by the Jan. 6 select committee — into his role in strategizing to help Trump overturn the results of the 2020 election. He faces charges for contempt of Congress for defying a subpoena issued by the select committee, a case that has been repeatedly delayed amid battles over executive privilege and immunity for presidential advisers.
In its brief order rejecting Navarro’s stay, the appeals court panel concluded that returning the documents would not violate Navarro’s protection against self-incrimination.
“Navarro has failed to articulate any cognizable Fifth Amendment injury,” the panel wrote. “Because the records were voluntarily created, and he has conceded both that they are in his possession and that they are the property of the United States, the action of physically returning the United States’ records to it will not implicate his [Fifth Amendment right].”
It was not immediately clear whether Navarro would appeal the panel’s ruling.
Justice Department attorneys argued that despite Navarro’s claim, there is a method for the government to enforce its ownership interest in the records Navarro has acknowledged retaining — a provision of the Washington, D.C., code. That statute, known as “replevin,” provides a mechanism for property owners to reclaim stolen materials even while court proceedings are pending.
Navarro has contended that this procedure was not contemplated in federal recordkeeping laws and had never been used to enforce the return of presidential records before. But the appeals court panel said he had “not adequately demonstrated that the United States cannot proceed under the replevin statute.”
However, the panel said it would not “prejudge” any additional arguments about that issue that might be made as the case proceeds.
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