[House Report 117-284]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-284
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RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND PETER K.
NAVARRO AND DANIEL SCAVINO, JR., IN CONTEMPT OF CONGRESS FOR REFUSAL TO
COMPLY WITH SUBPOENAS DULY ISSUED BY THE SELECT COMMITTEE TO
INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL
_______
March 29, 2022.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Thompson of Mississippi, from the Select Committee to Investigate
the January 6th Attack on the United States Capitol, submitted the
following
R E P O R T
The Select Committee to Investigate the January 6th Attack
on the United States Capitol, having considered this Report,
reports favorably thereon and recommends that the Report be
approved.
The form of the Resolution that the Select Committee to
Investigate the January 6th Attack on the United States Capitol
would recommend to the House of Representatives for citing
Peter K. Navarro and Daniel Scavino, Jr., for contempt of
Congress pursuant to this Report is as follows:
Resolved, That Peter K. Navarro and Daniel Scavino, Jr.,
shall be found to be in contempt of Congress for failure to
comply with congressional subpoenas.
Resolved, That pursuant to 2 U.S.C. Sec. Sec. 192 and 194,
the Speaker of the House of Representatives shall certify the
report of the Select Committee to Investigate the January 6th
Attack on the United States Capitol, detailing the refusal of
Peter K. Navarro to produce documents or appear for a
deposition before the Select Committee to Investigate the
January 6th Attack on the United States Capitol as directed by
subpoena, to the United States Attorney for the District of
Columbia, to the end that Mr. Navarro be proceeded against in
the manner and form provided by law.
Resolved, That pursuant to 2 U.S.C. Sec. Sec. 192 and 194,
the Speaker of the House of Representatives shall certify the
report of the Select Committee to Investigate the January 6th
Attack on the United States Capitol, detailing the refusal of
Daniel Scavino, Jr., to produce documents or appear for a
deposition before the Select Committee to Investigate the
January 6th Attack on the United States Capitol as directed by
subpoena, to the United States Attorney for the District of
Columbia, to the end that Mr. Scavino be proceeded against in
the manner and form provided by law.
Resolved, That the Speaker of the House shall otherwise
take all appropriate action to enforce the subpoenas.
CONTENTS
Page
Purpose and Summary.............................................. 2
Peter K. Navarro............................................... 2
Daniel Scavino, Jr............................................. 5
Background on the Select Committee's Investigation............... 7
Peter K. Navarro............................................... 8
Daniel Scavino, Jr............................................. 19
Select Committee Consideration................................... 33
Select Committee Vote............................................ 33
Select Committee Oversight Findings.............................. 34
C.B.O. Estimate.................................................. 34
Statement of General Performance Goals and Objectives............ 34
Appendix I....................................................... 35
Appendix II...................................................... 71
Purpose and Summary
On January 6, 2021, a violent mob attempted to impede
Congress's constitutional and statutory mandate to count the
electoral votes in the 2020 Presidential election and launched
an assault on the United States Capitol Complex that resulted
in multiple deaths, physical harm to more than 140 members of
law enforcement, and terror and trauma among staff,
institutional employees, and press. In response, the House
adopted House Resolution 503 on June 30, 2021, establishing the
Select Committee to Investigate the January 6th Attack on the
United States Capitol (hereinafter referred to as the ``Select
Committee'').
The Select Committee is investigating the facts,
circumstances, and causes of the January 6th attack and issues
relating to the interference with the peaceful transfer of
power, in order to identify and evaluate problems and to
recommend to the House and its relevant committees corrective
laws, policies, procedures, rules, or regulations. This inquiry
includes examination of the factors that influenced,
instigated, or contributed to the attack and how various
individuals and entities coordinated their activities leading
up to the attack.
Peter K. Navarro
According to published reports, Peter K. Navarro, a White
House trade advisor, worked with Stephen K. Bannon and others
to develop and implement a plan to delay Congress's
certification, and ultimately change the outcome, of the
November 2020 Presidential election. In November 2021, Mr.
Navarro published In Trump Time, a book in which he described
this plan as the ``Green Bay Sweep'' and stated that it was
designed as the ``last, best chance to snatch a stolen election
from the Democrats' jaws of deceit.''\1\ In a later interview
about his book, Mr. Navarro added that former-President Trump
was ``on board with the strategy,'' as were more than 100
Members of Congress.\2\ Previously, Mr. Navarro had publicly
released on his website a three-part report, dubbed ``The
Navarro Report,'' repeating many claims of purported fraud in
the election that have been discredited in public reporting, by
State officials, and by courts.\3\
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\1\Peter Navarro, In Trump Time: My Journal of America's Plague
Year, (All Seasons Press, 2021), at pp. 251-52.
\2\Jose Pagliery, ``Trump Adviser Peter Navarro Lays Out How He and
Bannon Planned to Overturn Biden's Electoral Win,'' The Daily Beast,
(December 27, 2021), available at https://www.thedailybeast.com/trump-
advisor-peter-navarro-lays-out-how-he-and-steve-bannon-planned-to-
overturn-bidens-electoral-win.
\3\Peter Navarro, ``The Navarro Report,'' (2020, updated 2021),
available at https://peternavarro.com/the-navarro-report/.
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On February 9, 2022, Chairman Bennie G. Thompson signed a
subpoena for documents and testimony and transmitted it along
with a cover letter and schedule to Mr. Navarro.\4\ The
subpoena required that Mr. Navarro produce responsive documents
not later than February 23, 2022, and that Mr. Navarro appear
for a deposition on March 2, 2022.
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\4\See Appendix I, Ex. 1.
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When Select Committee staff emailed Mr. Navarro on February
9, 2022, asking whether he would accept service and had an
attorney, Mr. Navarro replied only: ``yes. no counsel.
Executive privilege[.]''\5\ Select Committee staff then emailed
the subpoena to Mr. Navarro. Within hours of receiving the
subpoena, Mr. Navarro released a public statement that clearly
indicated he had no intention of complying with the Select
Committee's subpoena while also acknowledging that he had
already publicly released information that is relevant to the
Select Committee's investigation in his book:
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\5\See Appendix I, Ex. 2.
President Trump has invoked Executive Privilege; and it is not
my privilege to waive. [The Select Committee] should negotiate
any waiver of the privilege with the president and his
attorneys directly, not through me. I refer this tribunal to
Chapter 21 of In Trump Time for what is in the public record
about the Green Bay Sweep plan to insure [sic] election
integrity[.]\6\
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\6\Scott MacFarlane (@MacFarlaneNews), Twitter, Feb. 9, 2022 5:38
p.m. ET, available at https://twitter.com/MacFarlaneNews/status/
1491542034662019078.
Mr. Navarro also appeared on national television on
February 10, 2022, discussing subjects that were the focus of
the Select Committee's subpoena to him.\7\
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\7\``Transcript: The Beat with Ari Melber, 2/10/22,'' MSNBC, (Feb.
10, 2022), available at https://www.msnbc.com/transcripts/the-beat-
with-ari-melber/transcript-beat-ari-melber-2-10-22-n1289032.
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On February 24, 2022, Select Committee staff contacted Mr.
Navarro via email about his failure to produce documents by the
February 23rd deadline in the subpoena. In the same email,
staff reminded Mr. Navarro about the date for his deposition
and notified him of its location within the U.S. Capitol
campus. Staff also requested that Mr. Navarro contact the
Select Committee for further details about the deposition or,
alternatively, to notify the Select Committee if he did not
plan to appear for deposition testimony.\8\
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\8\See Appendix I, Ex. 3.
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On February 27, 2022, Mr. Navarro contacted Select
Committee staff and said that ``President Trump has invoked
[e]xecutive [p]rivilege in this matter; and it is neither my
privilege to waive or Joseph Biden's privilege to waive.''\9\
Mr. Navarro did not provide any evidence that former-President
Trump had ever invoked executive privilege with respect to any
documents in Mr. Navarro's personal possession or any testimony
that Mr. Navarro could provide. Select Committee staff
responded the same day and explained that there are areas of
inquiry that do not implicate ``any executive privilege
concerns at all.''\10\ Select Committee staff further informed
Mr. Navarro that he could make executive privilege objections
during his deposition and that he must do so on a ``question-
by-question basis'' to ``enable the Select Committee to better
understand [his] objections and, if necessary, take any
additional steps to address them.''\11\ Select Committee staff
then asked Mr. Navarro again whether he intended to appear for
his deposition on March 2, 2022, as required by the subpoena.
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\9\See Appendix I, Ex. 4.
\10\Id.
\11\Id.
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Later the same day, Mr. Navarro responded to the Select
Committee's email correspondence. Instead of saying whether he
intended to appear for his deposition, Mr. Navarro asked:
``Will this event be open to the public and press?''\12\ Select
Committee staff responded that it would not be open to the
press, that it would be a ``staff-led deposition, which members
of the Select Committee may also join and in which they may
participate.''\13\ Select Committee staff asked about Mr.
Navarro's document production and offered to find a new date
for the deposition ``within a reasonable time'' if Mr. Navarro
had a scheduling conflict on March 2d.\14\ Mr. Navarro did not
respond to that offer but, the next day, sent the Select
Committee an email saying that he had ``been clear in my
communications on this matter'' and that ``it is incumbent on
the Committee to directly negotiate with President Trump and
his attorneys regarding any and all things related to this
matter.''\15\
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\12\Id.
\13\Id.
\14\Id.
\15\See Appendix I, Ex. 5.
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On February 28, 2022, the White House Counsel's Office
issued a letter to Mr. Navarro regarding the Select Committee's
subpoena. That letter stated: ``[I]n light of the unique and
extraordinary nature of the matters under investigation,
President Biden has determined that an assertion of executive
privilege is not in the national interest, and therefore is not
justified, with respect to particular subjects within the
purview of the Select Committee.''\16\ The letter further noted
that ``President Biden accordingly has decided not to assert
executive privilege'' with respect to the testimony of Mr.
Navarro ``regarding those subjects,'' or with respect to ``any
documents [he] may possess that bear on them.'' Further, the
letter stated: ``For the same reasons underlying his decision
on executive privilege, President Biden has determined that he
will not assert immunity to preclude [Mr. Navarro] from
testifying before the Select Committee.''\17\
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\16\See Appendix I, Ex. 6.
\17\Id.
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On March 1, 2022, Select Committee staff sent another email
to Mr. Navarro about his appearance for testimony as required
by the subpoena. Once again, Select Committee staff reminded
Mr. Navarro that ``there are topics that the Select Committee
believes it can discuss with [him] without raising any
executive privilege concerns at all, including, but not limited
to, questions related to [his] public three-part report about
purported fraud in the November 2020 election and the plan [he]
described in [his] book called the `Green Bay Sweep.'''\18\
Select Committee staff told Mr. Navarro, again, that if there
were any ``specific questions that raise[d] executive privilege
concerns, [he could] assert [his] objections on the record and
on a question-by-question basis.''\19\ Select Committee staff
also provided Mr. Navarro with information regarding the time
and location of his deposition.
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\18\See Appendix I, Ex. 7.
\19\Id.
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Mr. Navarro did not respond to the March 1st email from
Select Committee staff. He has failed to produce documents or
appear for his scheduled deposition by the deadlines in the
February 9, 2022, subpoena.\20\
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\20\See Appendix I, Ex. 8.
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Rather than appear for his deposition or respond directly
to the Select Committee, Mr. Navarro issued a public statement
regarding his deposition.\21\ Mr. Navarro predicted that his
interactions with the Select Committee would be judged by the
``Supreme Court, where this case is headed[.]''\22\ Mr.
Navarro, however, never filed any case seeking relief from his
responsibilities to comply with the Select Committee's
subpoena.
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\21\Ryan Nobles, Paula Reid, and Annie Grayer, ``Trump adviser
Peter Navarro skips scheduled deposition with January 6 committee,''
CNN, (March 2, 2022), available at https://www.cnn.com/2022/03/02/
politics/peter-navarro-january-6/index.html.
\22\Id.
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In United States v. Bryan (1950), the Supreme Court
emphasized that the subpoena power is a ``public duty, which
every person within the jurisdiction of the Government is bound
to perform when properly summoned.''\23\ The Court recently
reinforced this clear obligation by stating that ``[w]hen
Congress seeks information needed for intelligent legislative
action, it unquestionably remains the duty of all citizens to
cooperate.''\24\
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\23\United States v. Bryan, 339 U.S. 323, 331 (1950).
\24\Trump v. Mazars USA LLP, 140 S.Ct. 2019, 2036 (2020) (emphasis
in original; internal quotation marks removed). See also Watkins v.
United States, 354 U.S. 178, 187-88 (1957) (stating of citizens that
``It is their unremitting obligation to respond to subpoenas, to
respect the dignity of the Congress and its committees, and to testify
fully with respect to matters within the province of proper
investigation.'').
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The contempt of Congress statute, 2 U.S.C. Sec. 192, makes
clear that a witness summoned before Congress must appear or be
``deemed guilty of a misdemeanor'' punishable by a fine of up
to $100,000 and imprisonment for up to 1 year.\25\ Mr.
Navarro's refusal to comply with the Select Committee's
subpoena in any way represents willful default under the law
and warrants referral to the United States Attorney for the
District of Columbia for prosecution for contempt of Congress
as prescribed by law.
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\25\The prison term for this offense makes it a Class A
misdemeanor. 18 U.S.C. 3559(a)(6). By that classification, the
penalty for contempt of Congress specified in 2 U.S.C. 192 increased
from $1,000 to $100,000. 18 U.S.C. 3571(b)(5).
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Daniel Scavino, Jr.
According to many published reports, Daniel Scavino, Jr., a
long-time employee of former-President Trump, was responsible
for social media and communications strategy for the former
President, including with respect to the Trump Campaign's post-
election efforts to challenge the 2020 election results. Mr.
Scavino worked with Mr. Trump as part of the then-President's
campaign to reverse the election results. This campaign
included, among other things, spreading false information via
social media regarding alleged election fraud and recruiting a
crowd to Washington for the events of January 6th. Mr. Scavino
reportedly attended several meetings with then-President Trump
in which challenges to the election were discussed. Mr. Scavino
also tracked social media on behalf of former-President Trump,
and he did so at a time when sites reportedly frequented by Mr.
Scavino suggested the possibility of violence on January 6th.
The Select Committee therefore has reason to believe that Mr.
Scavino may have had advance warning about the potential for
violence on January 6th.
Mr. Scavino did not only work as a White House official. He
separately promoted activities designed to advance Mr. Trump's
success as a Presidential candidate. He continued to do so
after the 2020 election, promoting activities designed to
reverse the outcome of a lost election.
Mr. Scavino's public statements and reported conduct make
clear the relevance of his testimony and documents for the
Select Committee's investigation.
On October 6, 2021,\26\ Chairman Thompson signed a subpoena
for documents and testimony and transmitted it along with a
cover letter and schedule to Mr. Scavino.\27\ On October 8,
2021, U.S. Marshals served this subpoena at Mar-a-Lago, Mr.
Scavino's reported place of employment, to Ms. Susan Wiles, who
represented herself as chief of staff to former-President Trump
and as authorized to accept service on Mr. Scavino's
behalf.\28\ The subpoena required that Mr. Scavino produce
responsive documents not later than October 21, 2021, and that
Mr. Scavino appear for a deposition on October 28, 2021.
Subsequent communications between counsel for Mr. Scavino and
Chairman Thompson, however, did not result in Mr. Scavino's
agreement to appear for testimony or produce documents.
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\26\As explained below, the Chairman issued three subpoenas to Mr.
Scavino. The first was dated September 23, 2021, but could not be
served because Mr. Scavino could not be located. The second was dated
October 6, 2021, and was served on October 8, 2021. After Mr. Scavino
challenged service of the second subpoena, the Chairman issued a third
on November 23, 2021, and electronically served it on Mr. Scavino's
attorney.
\27\See Appendix II, Ex. 1.
\28\Id.
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Attempting to reach an accommodation with Mr. Scavino,
Chairman Thompson granted multiple extensions for the
deposition and production of documents:
Per Mr. Scavino's request for an extension,
the Chairman deferred the document production deadline
to October 28, 2021, and the deposition to November 4,
2021.\29\
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\29\See Appendix II, Ex. 2.
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Per Mr. Scavino's request for an extension,
the Chairman again deferred the document production
deadline to November 4, 2021, and the deposition to
November 12, 2021.\30\
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\30\Id.
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Per Mr. Scavino's request for an extension,
the Chairman deferred the document production deadline
to November 5, 2021.\31\
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\31\Id.
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Per Mr. Scavino's request for an extension,
the Chairman deferred the document production deadline
to November 15, 2021, and the deposition to November
19, 2021.\32\
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\32\Id.
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The Chairman extended the document
production deadline to November 29, 2021, and the
deposition to December 1, 2021.\33\
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\33\See Appendix II, Ex. 3.
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Following the U.S. Supreme Court's denial of
a stay in Trump v. Thompson, the Chairman offered Mr.
Scavino an additional opportunity to indicate his
intent to cooperate with the investigation and comply
with the subpoena by February 8, 2022.\34\
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\34\See Appendix II, Ex. 4. See also Trump v. Thompson, 2021 U.S.
App. LEXIS 36315, at *46 (D.C. Cir. Dec. 9, 2021), cert. denied, 2022
U.S. LEXIS 796 (U.S., Feb. 22, 2022).
Despite all these extensions, to date, Mr. Scavino has not
produced a single document, nor has he appeared for testimony.
On March 15, 2022, the White House Counsel's Office issued
a letter to Mr. Scavino's attorney regarding the Select
Committee's subpoena. That letter stated, ``President Biden has
determined that an assertion of executive privilege is not in
the national interest, and therefore is not justified, with
respect to particular subjects within the purview of the Select
Committee.''\35\ Further, ``President Biden accordingly has
decided not to assert executive privilege as to Mr. Scavino's
testimony regarding those subjects, or any documents he may
possess that bear on them. For the same reasons underlying his
decision on executive privilege, President Biden has determined
that he will not assert immunity to preclude [Mr. Scavino] from
testifying before the Select Committee.''\36\
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\35\See Appendix II, Ex. 5.
\36\Id.
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In United States v. Bryan (1950), the Supreme Court
emphasized that the subpoena power is a ``public duty, which
every person within the jurisdiction of the Government is bound
to perform when properly summoned.''\37\ The Court recently
reinforced this clear obligation by stating that ``[w]hen
Congress seeks information needed for intelligent legislative
action, it unquestionably remains the duty of all citizens to
cooperate.''\38\
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\37\United States v. Bryan, 339 U.S. 323, 331 (1950).
\38\See supra, at note 24.
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The contempt of Congress statute, 2 U.S.C. Sec. 192, makes
clear that a witness summoned before Congress must appear or be
``deemed guilty of a misdemeanor'' punishable by a fine of up
to $100,000 and imprisonment for up to 1 year.\39\ Mr.
Scavino's refusal to comply with the Select Committee's
subpoena in any way represents willful default under the law
and warrants referral to the United States Attorney for the
District of Columbia for prosecution for contempt of Congress
as prescribed by law.
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\39\See supra, at note 25.
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Background on the Select Committee's Investigation
House Resolution 503 provides that the enumerated purposes
of the Select Committee include investigating and reporting
upon the ``facts, circumstances, and causes relating to the
January 6, 2021, domestic terrorist attack upon the United
States Capitol Complex . . . and relating to the interference
with the peaceful transfer of power.''\40\ As part of this
charge, the Select Committee is examining the ``influencing
factors that fomented such an attack on American representative
democracy.''\41\
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\40\H. Res. 503, 117th Cong., Sec. 3(1) (2021)
\41\Id.
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The Supreme Court has long held that Congress has a
constitutional duty to conduct oversight. ``The power of the
Congress to conduct investigations is inherent in the
legislative process,''\42\ and the capacity to enforce said
investigatory power ``is an essential and appropriate auxiliary
to the legislative function.''\43\ ``Absent such a power, a
legislative body could not `wisely or effectively' evaluate
those conditions `which the legislation is intended to affect
or change.'''\44\
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\42\Watkins v. United States, 354 U.S. 178, 187 (1957). See also
Trump v. Mazars USA, LLP, 140 S.Ct. 2019, 2031 (2020).
\43\McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
\44\Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 305 (D.D.C. 1976),
aff'd, 548 F.2d 977 (D.C. Cir. 1976) (quoting McGrain, 273 U.S. at
175).
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The oversight powers of House and Senate committees are
also codified in legislation. For example, the Legislative
Reorganization Act of 1946 directed committees to ``exercise
continuous watchfulness'' over the executive branch's
implementation of programs within its jurisdictions,\45\ and
the Legislative Reorganization Act of 1970 authorized
committees to ``review and study, on a continuing basis, the
application, administration, and execution'' of laws.\46\
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\45\Pub. L. 79-601, 79th Cong. 136, (1946).
\46\Pub. L. 91-510, 91st Cong. 118, (1970).
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The Select Committee was properly constituted under
section 2(a) of House Resolution 503, 117th Congress. As
required by that resolution, Members of the Select Committee
were selected by the Speaker, after ``consultation with the
minority leader.''\47\ A bipartisan selection of Members was
appointed pursuant to House Resolution 503 on July 1, 2021, and
July 26, 2021.\48\
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\47\Speaker Pelosi detailed such consultation and her selection
decisions in a July 21, 2021, press release, available at https://
www.speaker.gov/newsroom/72121-2.
\48\167 Cong. Rec. 115 (July 1, 2021), at p. H3597 and 167 Cong.
Rec. 130 (July 26, 2021), at p. H3885. The January 4, 2021, order of
the House provides that the Speaker is authorized to accept
resignations and to make appointments authorized by law or by the
House. See 167 Cong. Rec. 2 (Jan. 4, 2021), at p. H37.
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Pursuant to House rule XI and House Resolution 503, the
Select Committee is authorized ``to require, by subpoena or
otherwise, the attendance and testimony of such witnesses and
the production of books, records, correspondence, memoranda,
papers, and documents as it considers necessary.''\49\ Further,
section 5(c)(4) of House Resolution 503 provides that the
Chairman of the Select Committee may ``authorize and issue
subpoenas pursuant to clause 2(m) of rule XI in the
investigation and study'' conducted pursuant to the enumerated
purposes and functions of the Select Committee. The Select
Committee's authorizing resolution further states that the
Chairman ``may order the taking of depositions, including
pursuant to subpoena, by a Member or counsel of the Select
Committee, in the same manner as a standing committee pursuant
to section 3(b)(1) of House Resolution 8, One Hundred
Seventeenth Congress.''\50\
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\49\House rule XI, cl. 2(m)(1)(B), 117th Cong., (2021); H. Res.
503, 117th Cong. 5(c)(4), (2021).
\50\H. Res. 503, 117th Cong. 5(c)(6), (2021).
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Peter K. Navarro
A. The Select Committee seeks information from Mr. Navarro central to
its investigative purposes.
The Select Committee seeks information from Mr. Navarro
central to its investigative responsibilities delegated to it
by the House of Representatives. This includes the obligation
to investigate and report on the facts, circumstances, and
causes of the attack on January 6, 2021, and on the facts,
circumstances, and causes ``relating to the interference with
the peaceful transfer of power.''\51\
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\51\H. Res. 503, 117th Cong. 3(1) (2021).
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The events of January 6, 2021, involved both a physical
assault on the Capitol building and law enforcement personnel
protecting it and an attack on the constitutional process
central to the peaceful transfer of power following a
Presidential election. The counting of electoral college votes
by Congress is a component of that transfer of power that
occurs every January 6th following a Presidential election.
This event is part of a complex process, mediated through the
free and fair elections held in jurisdictions throughout the
country, and through the statutory and constitutional processes
set up to confirm and validate the results. In the case of the
2020 Presidential election, the January 6th electoral college
vote count occurred following a series of efforts in the
preceding weeks by Mr. Trump and his supporters to challenge
the legitimacy of, disrupt, delay, and overturn the election
results.
According to eyewitness accounts as well as the statements
of participants in the attack on January 6, 2021, a purpose of
the assault was to stop the process of validating what then-
President Trump, his supporters, and his allies had falsely
characterized as a ``stolen'' or ``fraudulent'' election. The
claims regarding the 2020 election results were advanced and
amplified in the weeks leading up to the January 6th assault,
even after courts across the country had resoundingly rejected
lawsuits claiming election fraud and misconduct, and after all
States had certified the election results. As part of this
effort, Mr. Trump and his associates spread false information
about, and cast doubts on, the elections in Arizona,
Pennsylvania, Michigan, and Georgia, among other States, and
pressed Federal, State, and local officials to use their
authorities to challenge the election results.
To fulfill its investigative responsibilities, the Select
Committee needs to understand the events and communications in
which Mr. Navarro reportedly participated or that he observed.
He has publicly acknowledged playing a role in devising a post-
election strategy to change the outcome of the election and
promoting claims of election fraud intended to further that
strategy. These actions were outside his official governmental
duties at the time.
As Assistant to the President and Director of Trade and
Manufacturing Policy, Mr. Navarro's role in government was to
assist the President in formulating and implementing trade
policy. Former-President Trump created Mr. Navarro's position
by Presidential Executive Order No. 13797 in 2017.\52\ The
mission of the office that Mr. Navarro led was to ``defend and
serve American workers and domestic manufacturers while
advising the President on policies to increase economic growth,
decrease the trade deficit, and strengthen the United States
manufacturing and defense industrial bases.''\53\ Additionally,
the office's responsibilities included: ``(a) advis[ing] the
President on innovative strategies and promot[ing] trade
policies consistent with the President's stated goals; (b)
serv[ing] as a liaison between the White House and the
Department of Commerce and undertak[ing] trade-related special
projects as requested by the President; and (c) help[ing to]
improve the performance of the executive branch's domestic
procurement and hiring policies, including through the
implementation of the policies described in Executive Order
13788 of April 18, 2017 (Buy American and Hire American).''\54\
In March 2020, President Trump also signed Executive Order No.
13911, which named Mr. Navarro as the National Defense
Production Act Policy Coordinator, which gave the Office of
Trade and Manufacturing Policy authority to address potential
shortfalls in pandemic-related resources such as ventilators
and personal protective equipment.\55\
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\52\Exec. Order No. 13797, 82 Fed. Reg. 20821 (April 29, 2017).
\53\Id., at Sec. 2.
\54\Id., at Sec. 3.
\55\Exec. Order No. 13911, 85 Fed. Reg. 18403 (Mar. 27, 2020), at
Sec. Sec. 1, 6.
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The Select Committee does not seek documents or testimony
from Mr. Navarro related to his official duties as a Federal
official. 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. 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.\56\ When Mr. Navarro engaged
in these activities, and other activities described below, he
was acting outside the scope of his official duties.
---------------------------------------------------------------------------
\56\Federal law requires a separation of duties for Federal
officials who decide to engage in campaign activities. The Hatch Act
generally prohibits officials, such as Mr. Navarro, from using their
official authority or influence to affect the outcome of an election.
See 5 U.S.C. Sec. 7323(a); 5 C.F.R. Sec. 734.101 (defining
``political activity''); 5 C.F.R. Sec. 734.302 (prohibiting use of
official title while engaged in political activity). This would have
prevented Mr. Navarro from acting as both a White House official and as
a campaign official on certain matters or communications. See also
``Investigation of Political Activities by Senior Trump Administration
Officials During the 2020 Presidential election,'' Report of the Office
of Special Counsel, (Nov. 9, 2021), at pp. 17, 22-23.
---------------------------------------------------------------------------
In December 2020, Mr. Navarro released a three-part report
on purported fraud in the election on his personal website. The
chapters of the report, titled ``Volume One: The Immaculate
Deception,'' ``Volume Two: The Art of the Steal,'' and ``Volume
Three: Yes, President Trump Won'' (collectively, ``The Navarro
Report''), discuss, among other things, disproven claims of
alleged voter fraud and cite to sources such as Stephen
Bannon's ``War Room: Pandemic'' podcasts and unsupported
allegations from cases around the country that courts
dismissed.\57\ In a press call on December 17, 2020, to
announce his report, Mr. Navarro acknowledged that he wrote the
report ``as a private citizen'' and, in doing so, wanted to
address what he called ``outright fraud'' in the 2020
Presidential election.\58\
---------------------------------------------------------------------------
\57\Peter Navarro, ``The Navarro Report,'' (2020, updated 2021),
available at https://peternavarro.com/the-navarro-report/.
\58\``Peter Navarro `The Immaculate Deception' Report News
Conference Transcript,'' (Dec. 17, 2020), available at https://
www.rev.com/blog/transcripts/peter-navarro-the-immaculate-deception-
report-news-conference-transcript.
---------------------------------------------------------------------------
The Select Committee's investigation has revealed that
``The Navarro Report'' was shared, in whole or in part, by
individuals who made public claims about purported fraud in the
election, including Professor John Eastman and then-White House
Chief of Staff Mark Meadows.\59\ Notably, then-President Trump
included a link to volume one of ``The Navarro Report'' in the
same tweet in which he first announced that he would speak at a
rally in Washington on January 6, 2021.\60\ Mr. Navarro has
claimed that Mr. Trump ``himself had distributed Volume One of
the report to every member of the House and Senate'' before
January 6, 2021.\61\ Specific allegations contained in ``The
Navarro Report'' were also used as justification in attempts to
convince State legislators to de-certify their State's popular
vote and appoint Trump-Pence electoral college electors.\62\
And, the report was cited in litigation that, if successful,
would have resulted in a declaration that the Vice President
alone could decide which electoral college votes to count
during the January 6, 2021, joint session of Congress.\63\
---------------------------------------------------------------------------
\59\Documents on file with the Select Committee.
\60\Donald Trump (@realDonaldTrump), Twitter, Dec. 19, 2020 1:42
a.m. ET, available at http://web.archive.org/web/20201225035520mp_/
https://twitter.com/realDonaldTrump/status/1340185773220515840
(archived).
\61\Tom Dickinson, ``Peter Navarro: Trump Distributed Bogus
Election Fraud Research to `Every' congressional Republican,'' Rolling
Stone, (Jan. 3, 2022) available at https://www.rollingstone.com/
politics/politics-news/peter-navarro-interview-jan-6-electoral-college-
1277938/.
\62\Documents on file with the Select Committee.
\63\Documents on file with the Select Committee. See also Gohmert,
et al. v. Pence, 510 F. Supp. 3d 435 (E.D. Tex. 2021).
---------------------------------------------------------------------------
Mr. Navarro also reportedly worked with members of the
Trump Campaign's legal team to directly encourage State
legislators to overturn the results of the 2020 election. On
January 2, 2021, Mr. Navarro joined a call with Phill Kline,
Rudy Giuliani, Professor John Eastman, John Lott, Jr., then-
President Trump, and hundreds of State legislators. During the
call, Mr. Navarro discussed his report on voter fraud and told
the State legislators: ``Your job, I believe, is to take
action, action, action. . . The situation is dire.''\64\ In
that same call, Mr. Trump told the State legislators that they
were the best chance to change the certified results of the
Presidential election in certain States because ``[y]ou are the
real power . . .[y]ou're more important than the courts. You're
more important than anything because the courts keep referring
to you, and you're the ones that are going to make the
decision.''\65\
---------------------------------------------------------------------------
\64\Paul Bedard, ``Exclusive: Trump urges state legislators to
reject electoral votes, `You are the real power,''' Washington
Examiner, (Jan. 3, 2021), available at https://
www.washingtonexaminer.com/washington-secrets/exclusive-trump-urges-
state-legislators-to-reject-electoral-votes-you-are-the-real-power.
\65\Id.
---------------------------------------------------------------------------
In the days leading up to January 6, 2021, according to
evidence obtained by the Select Committee, Mr. Navarro also
encouraged Mark Meadows (and possibly others) to call Roger
Stone to discuss January 6th.\66\ When Roger Stone appeared to
testify before the Select Committee and was asked questions
about the events of January 6th, he repeatedly invoked his
Fifth Amendment right against self-incrimination.
---------------------------------------------------------------------------
\66\Documents on file with the Select Committee.
---------------------------------------------------------------------------
Mr. Navarro wrote about ``The Navarro Report'' and his
efforts to change the outcome of the 2020 election in his
recently published book, In Trump Time.\67\ In his book, Mr.
Navarro described actions he took to affect the outcome of the
election, including encouraging President Trump in early-
November 2020 not to announce that he would seek election in
2024 because doing so would acknowledge that he had actually
lost the 2020 Presidential election.\68\ Mr. Navarro also wrote
that he called Attorney General William P. Barr to ask that the
Department of Justice intervene and support President Trump's
legal efforts to challenge the results of the 2020 election,
which Attorney General Barr refused to do.\69\ Mr. Navarro also
wrote in his book that he kept a journal of post-election
activities like those described above.\70\
---------------------------------------------------------------------------
\67\Navarro, In Trump Time (2021).
\68\Id., at p. 225.
\69\Id., at pp. 241-42.
\70\See, e.g., id.
---------------------------------------------------------------------------
Mr. Navarro also claimed credit for concocting a plan with
Stephen Bannon to overturn the election results in various
States dubbed the ``Green Bay Sweep.''\71\ In his book, Mr.
Navarro described the ``Green Bay Sweep'' as ``our last, best
chance to snatch a stolen election,'' and ``keep President
Trump in the White House for a second term.''\72\ The plan was
to encourage Vice President Michael R. Pence, as President of
the Senate, to delay certification of the electoral college
votes during the January 6th joint session of Congress and send
the election back to the State legislatures.\73\ Mr. Navarro's
theory is similar to the theory that Professor John Eastman
advocated before January 6th, and that President Trump
explicitly encouraged during his speech on the Ellipse on
January 6th.\74\ On January 6th, the day to implement the
``Green Bay Sweep,'' Mr. Navarro had multiple calls with Mr.
Bannon, including during and after the attack on the U.S.
Capitol.\75\ Mr. Navarro has stated that he believed his
strategy ``started flawlessly'' but was thwarted when ``two
things went awry: [Vice President] Pence's betrayal, and, of
course, the violence that erupted on Capitol Hill, which
provided [Vice President] Pence, [and Congressional leaders] an
excuse to abort the Green Bay sweep.''\76\
---------------------------------------------------------------------------
\71\Id.
\72\Id., at pp. 251-52.
\73\Id., at p. 252.
\74\Documents on file with the Select Committee.
\75\Documents on file with the Select Committee.
\76\Tom Dickinson, ``Peter Navarro: Trump Distributed Bogus
Election Fraud Research to `Every' Congressional Republican,'' Rolling
Stone, (Jan. 3, 2022) available at https://www.rollingstone.com/
politics/politics-news/peter-navarro-interview-jan-6-electoral-college-
1277938/.
---------------------------------------------------------------------------
This information demonstrates Mr. Navarro's clear relevance
to the Select Committee's investigation and provides the
foundation for its subpoena for Mr. Navarro's testimony and
document production. Congress, through the Select Committee, is
entitled to discover facts concerning what led to the attack on
the U.S. Capitol on January 6th, as well as White House
officials' actions and communications during and after the
attack.
B. Mr. Navarro has refused to comply with the Select Committee's
subpoena for testimony and documents.
On February 9, 2022, Chairman Thompson signed and issued a
subpoena, cover letter, and schedule to Mr. Navarro ordering
the production of both documents and testimony relevant to the
Select Committee's investigation into ``important activities
that led to and informed the events at the Capitol on January
6, 2021.''\77\ Chairman Thompson's letter identified public
reports describing Mr. Navarro's activities and past
statements, documenting some of the public information that
gave the Select Committee reason to believe Mr. Navarro
possesses information about matters within the scope of the
Select Committee's inquiry.
---------------------------------------------------------------------------
\77\See Appendix I, Ex. 1.
---------------------------------------------------------------------------
The accompanying letter set forth a schedule specifying
categories of related documents sought by the Select Committee
on topics including, but not limited to:
communications, documents, and information
that are evidence of the claims of purported fraud in
the three-volume ``Navarro Report'';
documents and communications related to
plans, efforts, or discussions regarding challenging,
decertifying, delaying the certification of,
overturning, or contesting the results of the 2020
election; and
communications with Stephen Bannon, Members
of Congress, State and local officials, other White
House employees, or representatives of the Trump
reelection campaign about election fraud and delaying
or preventing the certification of 2020 Presidential
election.
The subpoena required Mr. Navarro to produce the requested
documents to the Select Committee on February 23, 2022, at 10
a.m. and required Mr. Navarro's presence for the taking of
testimony on March 2, 2022, at 10 a.m.\78\
---------------------------------------------------------------------------
\78\Id.
---------------------------------------------------------------------------
As described above, Mr. Navarro had a brief exchange with
Select Committee staff after accepting service of the subpoena
and also made public comments indicating that he would not
appear or provide documents as required by the subpoena.
Indeed, Mr. Navarro failed to produce any documents by the
February 23, 2022, deadline, and did not appear for his
deposition on March 2, 2022.\79\ In his public and non-public
communications with the Select Committee, Mr. Navarro vaguely
referred to ``[e]xecutive [p]rivilege,'' with no further
explanation, as his only reason for failing to comply with the
Select Committee's subpoena.
---------------------------------------------------------------------------
\79\See Appendix I, Ex. 8.
---------------------------------------------------------------------------
C. Mr. Navarro's purported basis for non-compliance is wholly without
merit.
Congress has the power to compel witnesses to testify and
produce documents.\80\ An individual--whether a member of the
public or an executive branch official--has a legal (and
patriotic) obligation to comply with a duly issued and valid
congressional subpoena, unless a valid and overriding privilege
or other legal justification permits non-compliance.\81\ In
United States v. Bryan, the Supreme Court stated:
---------------------------------------------------------------------------
\80\McGrain, 273 U.S. at 174 (``We are of opinion that the power of
inquiry--with process to enforce it--is an essential and appropriate
auxiliary to the legislative function.''); Barenblatt v. United States,
360 U.S. 109, 111 (1959) (``The scope of the power of inquiry, in
short, is as penetrating and far-reaching as the potential power to
enact and appropriate under the Constitution.'').
\81\Watkins, 354 U.S. at 187-88 (``It is unquestionably the duty of
all citizens to cooperate with the Congress in its efforts to obtain
the facts needed for intelligent legislative action.''); see also
Committee on the Judiciary v. Miers, 558 F. Supp.2d 53, 99 (D.D.C.
2008) (``The Supreme Court has made it abundantly clear that compliance
with a congressional subpoena is a legal requirement.'') (citing United
States v. Bryan, 339 U.S. 323, 331 (1950)).
A subpoena has never been treated as an invitation to a game of
hare and hounds, in which the witness must testify only if
cornered at the end of the chase. If that were the case, then,
indeed, the great power of testimonial compulsion, so necessary
to the effective functioning of courts and legislatures, would
be a nullity. We have often iterated the importance of this
public duty, which every person within the jurisdiction of the
Government is bound to perform when properly summoned.\82\
---------------------------------------------------------------------------
\82\United States v. Bryan, 339 U.S. 323, 331 (1950).
As more fully described below, the Select Committee sought
testimony from Mr. Navarro on topics and interactions as to
which there can be no conceivable privilege claim. Mr. Navarro
has refused to testify in response to the subpoena ostensibly
based on a blanket assertion of executive privilege purportedly
asserted by former-President Trump. The Supreme Court has
recognized an implied constitutional privilege protecting
Presidential communications.\83\ Under certain circumstances,
executive privilege may be invoked to bar congressional inquiry
into communications covered by the privilege. However, the
Court has held that the privilege is qualified, not absolute,
and that it is limited to communications made ``in performance
of [a President's] responsibilities of his office and made in
the process of shaping policies and making decisions.''\84\ The
U.S. Court of Appeals for the D.C. Circuit has already assessed
generalized privilege assertions by Mr. Trump in relation to
information sought by the Select Committee and purportedly
protected by executive privilege. That court concluded that
``the profound interests in disclosure advanced by President
Biden and the January 6th Committee far exceed [Donald Trump's]
generalized concerns for Executive Branch
confidentiality.''\85\ Executive privilege has not been
properly invoked with respect to Mr. Navarro, is not applicable
to the testimony and documents sought by the Select Committee,
and does not justify Mr. Navarro's refusal to appear in any
event.
---------------------------------------------------------------------------
\83\United States v. Nixon, 418 U.S. 683, 703-16 (1974)
\84\Nixon v. Administrator of General Services (GSA), 433 U.S. 425,
449 (1977) (internal quotes and citations omitted).
\85\Trump v. Thompson, 2021 U.S. App. LEXIS 36315, at *46 (D.C.
Cir. Dec. 9, 2021), cert. denied, 2022 U.S. LEXIS 796 (U.S., Feb. 22,
2022).
---------------------------------------------------------------------------
1. President Biden decided not to invoke executive
privilege to prevent testimony by Mr. Navarro, and
Mr. Trump has not invoked executive privilege with
respect to Mr. Navarro.
In his February 9, 2022, email to the Select Committee
before receiving the subpoena and reviewing the documents
sought by the Select Committee, Mr. Navarro cryptically
claimed, ``[e]xecutive [p]rivilege,'' but offered no reason why
executive privilege would shield from disclosure to the Select
Committee all of Mr. Navarro's testimony or the documents in
Mr. Navarro's personal custody and control.\86\ Moreover, Mr.
Navarro has put forward no evidence to support a valid
assertion of executive privilege.
---------------------------------------------------------------------------
\86\See Appendix I, Ex. 2.
---------------------------------------------------------------------------
President Biden provided his considered determination that
invoking executive privilege, and asserting immunity, to
prevent Mr. Navarro's testimony and document production would
not be ``in the national interest, and therefore is not
justified, with respect to particular subjects within the
purview of the Select Committee.''\87\ Mr. Navarro has also
offered no evidence that former-President Trump has asserted
executive privilege, and the Select Committee has had no
communications with the former President regarding Mr. Navarro.
Without an assertion of executive privilege by Mr. Trump to the
Select Committee, and with the considered determination of the
current President not to assert any immunity or executive
privilege, Mr. Navarro cannot establish the foundational
element of a claim of executive privilege: an invocation of the
privilege by the executive.
---------------------------------------------------------------------------
\87\See Appendix I, Ex. 6.
---------------------------------------------------------------------------
In United States v. Reynolds, 345 U.S. 1, 7-8 (1953), the
Supreme Court held that executive privilege:
[B]elongs to the Government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to
be lightly invoked. There must a formal claim of privilege,
lodged by the head of the department which has control over the
matter, after actual personal consideration by that
officer.\88\
---------------------------------------------------------------------------
\88\See also United States v. Burr, 25 F. Cas. 187, 192 (CCD Va.
1807) (ruling that President Jefferson had to personally identify the
passages he deemed confidential and could not leave this determination
to the U.S. Attorney).
Here, President Biden has decided not to assert executive
privilege. But even if this formal determination by the
President as the head of the executive branch was not enough to
stop the valid assertion of executive privilege (and it was
with respect to Mr. Navarro), Mr. Navarro's assertion cannot be
valid because the Select Committee has not been provided with
any invocation of executive privilege--whether formal or
informal--by the former President.\89\ In any event, Mr.
Navarro's second-hand, categorical assertion of privilege,
without any description of the specific documents or specific
testimony over which privilege is claimed, is insufficient to
activate a claim of executive privilege.
---------------------------------------------------------------------------
\89\Indeed, as noted above, President Biden has determined that no
assertion of executive privilege is warranted by Mr. Navarro with
respect to the areas of inquiry by the Select Committee. See Appendix
I, Ex. 6.
---------------------------------------------------------------------------
2. Even if Mr. Trump had actually invoked executive
privilege, the privilege would not bar the Select
Committee from lawfully obtaining the documents and
testimony it seeks from Mr. Navarro.
The law is clear that executive privilege does not extend
to discussions relating to non-governmental business or among
private citizens.\90\ In In re Sealed Case (Espy), 121 F.3d
729, 752 (D.C. Cir. 1997), the court explained that the
Presidential communications privilege covers ``communications
authored or solicited and received by those members of an
immediate White House adviser's staff who have broad and
significant responsibility for investigating and formulating
the advice to be given the President on the particular matter
to which the communications relate.'' The court stressed that
the privilege only applies to communications intended to advise
the President ``on official government matters.''\91\
---------------------------------------------------------------------------
\90\See Nixon v. GSA, 433 U.S. at 449.
\91\In re Sealed Case (Espy), 121 F.3d 729, 752 (D.C. Cir. 1997).
---------------------------------------------------------------------------
The Select Committee does not seek information from Mr.
Navarro on trade policy or other official decision-making
within his sphere of official responsibility. Rather, as noted
above, the Select Committee seeks information from Mr. Navarro
on a range of subjects unrelated to his or the President's
official duties or related to his communications with people
outside government about matters outside the scope of Mr.
Navarro's official duties. These include the following topics:
Mr. Navarro's interactions with private
citizens, Members of Congress, or others outside the
White House related to the 2020 election or efforts to
overturn its results, including matters related to the
``Green Bay Sweep'' strategy for changing the election
results that Mr. Navarro developed with Stephen Bannon,
who was not a White House employee during the relevant
period;
the reports, and purported factual support
for the reports, that Mr. Navarro himself acknowledged
he prepared in his capacity ``as a private citizen'';
the connections, involvement, and planning
for January 6th events by Mr. Navarro, Roger Stone, and
other individuals who have refused to provide testimony
to the Select Committee; and
subjects covered by the book that he wrote
and publicly released, such as private calls he made to
Attorney General Barr to ``plead [the] case'' for the
Department of Justice to take action related to
purported election fraud,\92\ his calls and meetings
with Rudy Giuliani and others associated with the Trump
reelection campaign,\93\ and his experience in
Washington, DC, and around The National Mall on January
6, 2021.\94\
---------------------------------------------------------------------------
\92\Navarro, In Trump Time, at pp. 241-42.
\93\See, e.g., id., at p. 222.
\94\See, e.g., id., at p. 266-72.
There is no conceivable claim of executive privilege over
documents and testimony related to those topics.
Moreover, any claim of executive privilege and the need to
maintain confidentiality is severely undermined, if not
entirely vitiated, by Mr. Navarro's extensive public disclosure
of his communications with the former President, including on
issues directly implicated by the Select Committee's subpoena.
Mr. Navarro's recently published book described his efforts to
overturn the 2020 election and several meetings with then-
President Trump about those efforts. The day after he was
served with the Select Committee subpoena, Mr. Navarro appeared
on national television to discuss the subpoena and his efforts
to overturn the 2020 election. Mr. Navarro's public disclosures
relating to the very subjects of interest to the Select
Committee foreclose a claim of executive privilege with respect
to those disclosures.\95\
---------------------------------------------------------------------------
\95\See, e.g., Espy, 121 F.3d at 741-42 (discussing waiver and
concluding that ``the White House has waived its claims of [executive]
privilege in regard to the specific documents that it voluntarily
revealed to third parties outside the White House'').
---------------------------------------------------------------------------
Even with respect to Select Committee inquiries that
involve Mr. Navarro's direct communications with Mr. Trump,
executive privilege does not bar Select Committee access to
that information. Only communications that relate to official
Government business can be covered by the Presidential
communications privilege.\96\ Based on his role as Director of
Trade and Manufacturing Policy, Mr. Navarro may have had
``broad and significant responsibility for investigating and
formulating . . . advice to be given the President'' on
manufacturing or trade matters, in which case communications
with the President related to those ``particular matters''
might be within executive privilege.\97\ However,
communications on matters unrelated to official Government
business--and outside the scope of Mr. Navarro's official
duties--would not be privileged.\98\ Indeed, the Select
Committee did not intend to seek any information related to Mr.
Navarro's role as Director of Trade and Manufacturing Policy,
and instead was concerned exclusively with obtaining
information about events in which Mr. Navarro participated or
witnessed in his private, unofficial capacity.
---------------------------------------------------------------------------
\96\See Espy, 121 F.3d at 752 (``the privilege only applies to
communications . . . in the course of performing their function of
advising the President on official government matters''); cf. In re
Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998) (Deputy White House
Counsel's ``advice [to the President] on political, strategic, or
policy issues, valuable as it may have been, would not be shielded from
disclosure by the attorney-client privilege'').
\97\Espy, 121 F.3d at 752.
\98\See supra, at note 56.
---------------------------------------------------------------------------
Moreover, even with respect to any subjects of concern that
arguably involve official Presidential communications about
official Government business, the Select Committee's need for
this information to investigate the facts and circumstances
surrounding the January 6th assault on the U.S. Capitol and the
Nation's democratic institutions far outweighs any generalized
executive branch interest in maintaining confidentiality at
this point. The U.S. Court of Appeals has recognized this in
circumstances when Mr. Trump has formally asserted executive
privilege (unlike with Mr. Navarro),\99\ and the incumbent
President has concluded that ``an assertion of executive
privilege is not in the national interest, and therefore is not
justified, with respect to particular subjects within the
purview of the Select Committee . . . [including] efforts to
alter election results or obstruct the transfer of
power.''\100\
---------------------------------------------------------------------------
\99\Trump v. Thompson, 2021 U.S. App. 36315 (D.C. Cir. Dec. 9,
2021).
\100\See Appendix I, Ex. 6.
---------------------------------------------------------------------------
3. Mr. Navarro is not immune from testifying or producing
documents in response to the subpoena.
Finally, even if executive privilege may apply to some
aspect of Mr. Navarro's testimony, he, like other witnesses,
was required to produce a privilege log with respect to any
withheld documents noting any applicable privileges with
specificity, and to appear before the Select Committee for his
deposition to answer any questions concerning non-privileged
information and assert any applicable privileges on a question-
by-question basis. He did none of those things. Although he has
not actually claimed that he is immune from testifying or
producing documents to Congress, such a claim would not prevent
Mr. Navarro's cooperation with the Select Committee on the
subjects described in this Report.
As explained, President Biden has determined that it is not
in the national interest to assert immunity that Mr. Navarro
could claim would prevent testimony before the Select
Committee. And neither former-President Trump nor Mr. Navarro
have asserted any claim of testimonial immunity to prevent Mr.
Navarro from testifying in a deposition with the Select
Committee. President Biden, on the other hand, affirmatively
decided not to assert such immunity. In any event, all courts
that have reviewed purported immunity have been clear: even
senior White House aides who advise the President on official
Government business are not immune from compelled congressional
process.\101\
---------------------------------------------------------------------------
\101\See Committee on the Judiciary v. McGahn, 415 F. Supp.3d 148,
214 (D.D.C. 2019) (and subsequent history) (``To make the point as
plain as possible, it is clear to this Court for the reasons explained
above that, with respect to senior-level presidential aides, absolute
immunity from compelled congressional process simply does not
exist.''); Committee on the Judiciary v. Miers, 558 F. Supp.2d 53, 101
(D.D.C. 2008) (holding that White House counsel may not refuse to
testify based on direction from the President that testimony will
implicate executive privilege).
---------------------------------------------------------------------------
The general theory that a current or former White House
senior advisor may be immune from testifying before Congress is
based entirely on internal memoranda from the Department of
Justice's Office of Legal Counsel (``OLC'') that courts, in
relevant parts, have uniformly rejected.\102\ But even those
internal memoranda do not claim such immunity from testimony
for circumstances like those now facing Mr. Navarro. Those
internal memoranda do not address a situation in which the
incumbent President has decided to not assert immunity. And by
their own terms, the OLC opinions apply only to testimony
``about [a senior official's] official duties,'' not testimony
about unofficial actions or private conduct.\103\ Indeed, in
OLC opinions dating back to, at least, the 1970s, OLC has
qualified its own position by advocating for the testimonial
immunity of certain White House advisors before Congress
``unless [Congress's] inquiry is related to their private
conduct.''\104\ As described in this Report, the Select
Committee seeks testimony from Mr. Navarro about, among other
things, the ``Green Bay Sweep'' plan he developed to overturn
the election and his creation and publication of ``The Navarro
Report,'' conduct that was not part of his official duties and
that he admittedly engaged in ``as a private citizen.'' Mr.
Navarro is not immune from testifying before the Select
Committee.
---------------------------------------------------------------------------
\102\Id.
\103\See, e.g., Memorandum Opinion for the Counsel to the
President, Office of Legal Counsel, Testimonial Immunity Before
Congress of the Former Counsel to the President, 43 O.L.C. at 1 (May
20, 2019) (Slip Opinion); Letter Opinion for the Counsel to the
President, Testimonial Immunity Before Congress of the Assistant to the
President and Senior Counselor to the President, 43 O.L.C. 1 at 1 (July
12, 2019) (Slip Opinion).
\104\See, e.g., Memorandum for the Honorable John W. Dean III,
Counsel to the President, from Ralph E. Erickson, Assistant Attorney
General, Office of Legal Counsel, Re: Appearance of Presidential
Assistant Peter M. Flanigan Before a Congressional Committee at 1 (Mar.
15, 1972) (emphasis added).
---------------------------------------------------------------------------
Moreover, there is not, nor has there ever been, any
purported immunity for senior White House advisors from
producing non-privileged documents to Congress when required by
subpoena to do so. Mr. Navarro did not produce any documents,
and there is no theory of immunity that justifies his wholesale
non-compliance with the Select Committee's demand.
For the reasons stated above, Mr. Navarro's own conduct and
the determination by the current executive would override any
claim of privilege or immunity (even assuming Mr. Trump had
invoked executive privilege with respect to Mr. Navarro).
Furthermore, Mr. Navarro has refused to appear and assert
executive privilege on a question-by-question basis, making it
impossible for the Select Committee to consider any good-faith
executive privilege assertions. And, as discussed above, claims
of testimonial immunity and executive privilege are wholly
inapplicable to the range of subjects about which the Select
Committee seeks Mr. Navarro's testimony and that Mr. Navarro
has seemingly acknowledged involve non-privileged matters.
D. Mr. Navarro's failure to appear or produce documents in response to
the subpoena warrants holding Mr. Navarro in contempt.
An individual who fails or refuses to comply with a House
subpoena may be cited for contempt of Congress.\105\ Pursuant
to 2 U.S.C. Sec. 192, the willful refusal to comply with a
congressional subpoena is punishable by a fine of up to
$100,000 and imprisonment for up to 1 year. A committee may
vote to seek a contempt citation against a recalcitrant
witness. This action is then reported to the House. If a
contempt resolution is adopted by the House, the matter is
referred to a U.S. Attorney, who has a duty to refer the matter
to a grand jury for an indictment.\106\
---------------------------------------------------------------------------
\105\Eastland v. U.S. Servicemen's Fund, 421 U.S. 491 (1975).
\106\See 2 U.S.C. Sec. 194.
---------------------------------------------------------------------------
In a series of email correspondence, Select Committee staff
advised Mr. Navarro that his blanket and general claim of
``[e]xecutive [p]rivilege'' did not absolve him of his
obligation to produce documents and testify in a deposition.
Select Committee staff made clear that it wished to obtain
information from Mr. Navarro about topics that would not raise
``any executive privilege concerns at all'' and that Mr.
Navarro could assert any ``objections on the record and on a
question-by-question basis.''\107\ Mr. Navarro's failure to
appear for deposition or produce responsive documents
constitutes a willful failure to comply with the subpoena.
---------------------------------------------------------------------------
\107\See Appendix I, Ex. 4.
---------------------------------------------------------------------------
Daniel Scavino, Jr.
A. The Select Committee seeks information from Mr. Scavino central to
its investigative purposes.
Mr. Scavino's testimony and document production are
critical to the Select Committee's investigation. Mr. Scavino
is uniquely positioned to illuminate the extent of knowledge
and involvement of the former President, Members of Congress,
and other individuals and organizations in the planning and
instigation of the attack on the Capitol on January 6th,
including whether and how these various parties were
collaborating. Information in Mr. Scavino's possession is
essential to putting other witnesses' testimony and productions
into appropriate context and to ensuring the Select Committee
can fully and expeditiously complete its work.
Mr. Scavino served the former President in various roles
related to social media accounts and strategy, from the 2016
Presidential campaign through his service across the tenure of
the Trump administration, including as Deputy Chief of Staff
for Communications during the time most critical to the Select
Committee's investigation. Mr. Scavino's activities on Mr.
Trump's behalf went beyond the official duties of a member of
the White House staff. Mr. Scavino actively promoted Mr.
Trump's political campaign through social media. Scavino was
also reportedly present for meetings in November 2020 where
then-President Trump consulted with outside advisors about ways
to challenge the results of the 2020 election.\108\
---------------------------------------------------------------------------
\108\Carol Leonnig and Phillip Rucker, I Alone Can Fix It, (New
York: Penguin, 2021), at p. 377.
---------------------------------------------------------------------------
Further, the Select Committee has reason to believe that
Mr. Scavino was with then-President Trump on January 5th and
January 6th and was party to conversations regarding plans to
challenge, disrupt, or impede the official congressional
proceedings.\109\ Mr. Scavino spoke with Mr. Trump multiple
times by phone on January 6th,\110\ and was present with Mr.
Trump during the period when Americans inside the Capitol
building and across the country were urgently calling on Mr.
Trump for help to halt the violence at the Capitol, but Mr.
Trump failed to immediately take actions to stop it.\111\
---------------------------------------------------------------------------
\109\Bob Woodward and Robert Costa, Peril, (New York: Simon &
Schuster, 2021), at p. 231; Michael C. Bender, ``Frankly, We Did Win
This Election'': The Inside Story of How Trump Lost, (New York: Twelve
Books, 2021), at p. 373.
\110\Documents on file with the Select Committee.
\111\See Leonnig and Rucker, I Alone Can Fix It, at p. 465.
---------------------------------------------------------------------------
The Select Committee also has reason to believe that Mr.
Scavino may have had advance warning of the possibility of
violence on January 6th. Public reporting notes that Mr.
Scavino had a history of monitoring websites where, in the
weeks leading up to January 6th, users discussed potential acts
of violence.\112\ Whether and when the President and other
senior officials knew of impending violence is highly relevant
to the Select Committee's investigation and consideration of
legislative recommendations.
---------------------------------------------------------------------------
\112\Justin Hendrix, ``TheDonald.win and President Trump's
Foreknowledge of the Attack on the Capitol,'' Just Security, (Jan. 12,
2022), available at https://www.justsecurity.org/79813/thedonald-win-
and-president-trumps-foreknowledge-of-the-attack-on-the-capitol/
(discussing Mr. Scavino's social media practices for the President and
noting that ``[t]he sharing of specific techniques, tactics, and
procedures for the assault on the Capitol started on The Donald in
earnest on December 19, 2020 . . .'').
---------------------------------------------------------------------------
And again, aside from official duties--in which close aides
to the President should assist him in fulfilling his oath--Mr.
Scavino also engaged in activities promoting the Trump
Campaign.\113\ Evidence acquired by the Select Committee
confirms the widely known fact that Mr. Scavino worked closely
with former-President Trump on his social media messaging and
likely had access to the credentials necessary to post on the
President's accounts.\114\ Indeed, Mr. Scavino frequently
composed specific social media posts and discussed specific
language with the former President.\115\ During the time
leading up to the January 6th attack, public messages issued
from President Trump's social media account that the Select
Committee believes had the effect of providing false
information and enflaming passions about a core tenet of our
constitutional democracy. Specifically:
---------------------------------------------------------------------------
\113\See supra, at note 56. Mr. Scavino was subject to the same
restrictions on campaign activities as Mr. Navarro.
\114\Andrew Restuccia, Daniel Lippman, and Eliana Johnson, ```Get
Scavino in here': Trump's Twitter guru is the ultimate insider,''
Politico, (May 16, 2019), available at https://www.politico.com/story/
2019/05/16/trump-scavino-1327921; Justin Hendrix, ``TheDonald.win and
President Trump's Foreknowledge of the Attack on the Capitol,'' Just
Security (Jan. 12, 2022), available at https://www.justsecurity.org/
79813/thedonald-win-and-president-trumps-foreknowledge-of-the-attack-
on-the-capitol/; Woodward and Costa, Peril, at p. 231; Documents on
file with the Select Committee.
\115\Andrew Restuccia, Daniel Lippman, and Eliana Johnson, ```Get
Scavino in here': Trump's Twitter guru is the ultimate insider,''
Politico, (May 16, 2019), available at https://www.politico.com/story/
2019/05/16/trump-scavino-1327921; Woodward and Costa, Peril, at p. 231;
Documents on file with the Select Committee.
On December 19, 2020, 1:42 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
Peter Navarro releases 36-page report alleging election
fraud `more than sufficient' to swing victory to Trump
https://washex.am/3nwaBCe. A great report by Peter.
Statistically impossible to have lost the 2020
Election. Big protest in D.C. on January 6th. Be there,
will be wild!\116\
---------------------------------------------------------------------------
\116\Donald Trump (@realDonaldTrump), Twitter, Dec. 19, 2020 1:42
a.m. ET, available at http://web.archive.org/web/20201225035520mp_/
https://twitter.com/realDonaldTrump/status/1340185773220515840
(archived).
On December 19, 2020, 9:41 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
[Joe Biden] didn't win the Election. He lost all 6
Swing States, by a lot. They then dumped hundreds of
thousands of votes in each one, and got caught. Now
Republican politicians have to fight so that their
great victory is not stolen. Don't be weak fools!
https://t.co/d9Bgu8XPIj\117\
---------------------------------------------------------------------------
\117\Donald Trump (@realDonaldTrump), Twitter, Dec. 19, 2020 9:41
a.m. ET, available at http://web.archive.org/web/20201225035301mp_/
https://twitter.com/realDonaldTrump/status/1340306154031857665
(archived).
On December 19, 2020, 2:59 p.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
The lie of the year is that Joe Biden won! Christina
Bobb @OANN.\118\
---------------------------------------------------------------------------
\118\Donald Trump (@realDonaldTrump), Twitter, Dec. 19, 2020 2:59
p.m. ET, available at http://web.archive.org/web/20201225035142mp_/
https://twitter.com/realDonaldTrump/status/1340386251866828802
(archived).
On December 20, 2020, 12:26 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
GREATEST ELECTION FRAUD IN THE HISTORY OF OUR
COUNTRY!!!\119\
---------------------------------------------------------------------------
\119\Donald Trump (@realDonaldTrump), Twitter, Dec. 20, 2020 12:26
a.m. ET, available at http://web.archive.org/web/20201225035219mp_/
https://twitter.com/realDonaldTrump/status/1340529063799246848
(archived).
On December 22, 2020, 10:29 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
THE DEMOCRATS DUMPED HUNDREDS OF THOUSANDS OF BALLOTS
IN THE SWING STATES LATE IN THE EVENING. IT WAS A
RIGGED ELECTION!!!\120\
---------------------------------------------------------------------------
\120\Donald Trump (@realDonaldTrump), Twitter, Dec. 22, 2020 10:29
a.m. ET, available at http://web.archive.org/web/20201227202442mp_/
https://twitter.com/realDonaldTrump/status/1341405487057821698
(archived).
On December 26, 2020, 9:00 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
A young military man working in Afghanistan told me
that elections in Afghanistan are far more secure and
much better run than the USA's 2020 Election. Ours,
with its millions and millions of corrupt Mail-In
Ballots, was the election of a third world country.
Fake President!\121\
---------------------------------------------------------------------------
\121\Donald Trump (@realDonaldTrump), Twitter, Dec. 26, 2020 9:00
a.m. ET, available at http://web.archive.org/web/20210101075201mp_/
https://twitter.com/realDonaldTrump/status/1342832582606598144
(archived).
On December 26, 2020, 8:14 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
The ``Justice'' Department and the FBI have done
nothing about the 2020 Presidential Election Voter
Fraud, the biggest SCAM in our nation's history,
despite overwhelming evidence. They should be ashamed.
History will remember. Never give up. See everyone in
D.C. on January 6th.\122\
---------------------------------------------------------------------------
\122\Donald Trump (@realDonaldTrump), Twitter, Dec. 26, 2020 8:14
a.m. ET, available at http://web.archive.org/web/20201230193535mp_/
https://twitter.com/realDonaldTrump/status/1342821189077622792
(archived).
On December 28, 2020, 4:00 p.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
``Breaking News: In Pennsylvania there were 205,000
more votes than there were voters. This alone flips the
state to President Trump.''\123\
---------------------------------------------------------------------------
\123\Donald Trump (@realDonaldTrump), Twitter, Dec. 28, 2020 4:00
p.m. ET, available at http://web.archive.org/web/20201230195203mp_/
https://twitter.com/realDonaldTrump/status/1343663159085834248
(archived).
On December 30, 2020, 2:38 p.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
The United States had more votes than it had people
voting, by a lot. This travesty cannot be allowed to
stand. It was a Rigged Election, one not even fit for
third world countries!\124\
---------------------------------------------------------------------------
\124\Donald Trump (@realDonaldTrump), Twitter, Dec. 30, 2020 2:38
p.m. ET, available at http://web.archive.org/web/20201230212259mp_/
https://twitter.com/realdonaldtrump/status/1344367336715857921
(archived).
On January 4, 2021, 10:07 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
How can you certify an election when the numbers being
certified are verifiably WRONG. You will see the real
numbers tonight during my speech, but especially on
JANUARY 6th. @SenTomCotton Republicans have pluses &
minuses, but one thing is sure, THEY NEVER FORGET!\125\
---------------------------------------------------------------------------
\125\Donald Trump (@realDonaldTrump), Twitter, Jan. 4, 2021 10:07
a.m. ET, available at http://web.archive.org/web/20210106204726mp_/
https://twitter.com/realDonaldTrump/status/1346110956078817280
(archived).
On January 6, 2021, 1:00 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
If Vice President @Mike_Pence comes through for us, we
will win the Presidency. Many States want to decertify
the mistake they made in certifying incorrect & even
fraudulent numbers in a process NOT approved by their
State Legislatures (which it must be). Mike can send it
back!\126\
---------------------------------------------------------------------------
\126\Donald Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 1:00
a.m. ET, available at http://web.archive.org/web/20210106204711mp_/
https://twitter.com/realDonaldTrump/status/1346698217304584192
(archived).
On January 6, 2021, 8:17 a.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
States want to correct their votes, which they now know
were based on irregularities and fraud, plus corrupt
process never received legislative approval. All Mike
Pence has to do is send them back to the States, AND WE
WIN. Do it Mike, this is a time for extreme
courage!\127\
---------------------------------------------------------------------------
\127\Donald Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 8:17
a.m. ET, available at http://web.archive.org/web/20210106204708mp_/
https://twitter.com/realDonaldTrump/status/1346808075626426371
(archived).
On January 6, 2021, 2:24 p.m. ET, from
---------------------------------------------------------------------------
Donald J. Trump:
Mike Pence didn't have the courage to do what should
have been done to protect our Country and our
Constitution, giving States a chance to certify a
corrected set of facts, not the fraudulent or
inaccurate ones which they were asked to previously
certify. USA demands the truth!\128\
---------------------------------------------------------------------------
\128\Donald Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 2:24
p.m. ET, available at http://web.archive.org/web/20210106204701mp_/
http://www.twitter.com/realDonaldTrump/status/1346900434540240897
(archived).
The Select Committee seeks to question Mr. Scavino, in his
capacity as social media manager, about these and other similar
communications.
Public reporting also notes that Mr. Scavino and his social
media team had a history of monitoring websites including
``TheDonald.win,'' an online forum frequented by individuals
who openly advocated and planned violence in the weeks leading
up to January 6th.\129\ In the summer of 2016, former-President
Trump himself engaged in a written question-and-answer session
on a precursor to TheDonald.win called ``/r/The_Donald,'' which
was a subreddit (a forum on the website Reddit.com) at the
time.\130\ The online Reddit community, which had upward of
790,000 users, was banned by Reddit in mid-2020,\131\ after
which it migrated to another online forum located at
TheDonald.win.\132\
---------------------------------------------------------------------------
\129\Justin Hendrix, ``TheDonald.win and President Trump's
Foreknowledge of the Attack on the Capitol,'' Just Security, (Jan. 12,
2022), available at https://www.justsecurity.org/79813/thedonald-win-
and-president-trumps-foreknowledge-of-the-attack-on-the-capitol/; Ryan
Goodman and Justin Hendrix, ``The Absence of `The Donald','' Just
Security, (Dec. 6, 2021), available at https://www.justsecurity.org/
79446/the-absence-of-the-donald/ (noting that a post discussing
President Trump's December 19, 2020 ``Wild Protest'' tweet as a call to
come to Washington, DC, for January 6th was ``pinned'' to the top of
the website).
\130\Amrita Khalid, ``Donald Trump participated in a Reddit AMA,
but not much of anything was revealed,'' daily dot, (July 27, 2016,
updated May 26, 2021), available at https://www.dailydot.com/debug/
donald-trump-reddit-ama-fail/.
\131\Mike Isaac, ``Reddit, Acting Against Hate Speech, Bans
`The_Donald' Subreddit,'' New York Times, (June 29, 2020, updated Jan.
27, 2021), available at https://www.nytimes.com/2020/06/29/technology/
reddit-hate-speech.html.
\132\Craig Timberg and Drew Harwell, ``TheDonald's owner speaks out
on why he finally pulled plug on hate-filled site,'' Washington Post,
(Feb. 5, 2021), available at https://www.washingtonpost.com/technology/
2021/02/05/why-thedonald-moderator-left/.
---------------------------------------------------------------------------
Mr. Scavino reportedly amplified content from this
community, while his social media team also interacted with the
site's users. During the 2016 Presidential campaign, ``a team
in the war room at Trump Tower was monitoring social media
trends, including
[/r/The_Donald] subreddit . . . and privately communicating
with the most active users to seed new trends.''\133\ Trump
``campaign staffers monitored Twitter and [/r/The_Donald]
subreddit, and pushed any promising trends up to social media
director Dan Scavino, who might give them a boost with a
tweet.''\134\ In 2017, former-President Trump tweeted a video
of himself attacking CNN.\135\ The video had appeared on /r/
The_Donald 4 days earlier.\136\ In 2019, Politico reported that
Mr. Scavino ``regularly monitors Reddit, with a particular
focus on the pro-Trump
/r/The_Donald channel.''\137\
---------------------------------------------------------------------------
\133\Ben Schreckinger, ``World War Meme,'' Politico Magazine,
(March/April 2017), available at https://www.politico.com/magazine/
story/2017/03/memes-4chan-trump-supporters-trolls-internet-214856/.
\134\Id.
\135\Daniella Silva, ``President Trump Tweets Wrestling Video of
Himself Attacking `CNN','' NBC News, (July 2, 2017), available at
https://www.nbcnews.com/politics/donald-trump/president-trump-tweets-
wwe-video-himself-attacking-cnn-n779031.
\136\Id.
\137\Andrew Restuccia, Daniel Lippman, and Eliana Johnson, ```Get
Scavino in here': Trump's Twitter guru is the ultimate insider,''
Politico, (May 16, 2019), available at https://www.politico.com/story/
2019/05/16/trump-scavino-1327921.
---------------------------------------------------------------------------
On December 19, 2020, the same day Mr. Trump tweeted ``Big
protest in D.C. on January 6th . . . Be there, will be wild!,''
users on posts on TheDonald.win, began sharing ``specific
techniques, tactics, and procedures for the assault on the
Capitol.''\138\ The ``ensuing weeks of communications on the
site included information on how to use a flagpole as a weapon,
how to smuggle firearms into DC, measurements for a guillotine,
and maps of the tunnel systems under the Capitol
building.''\139\ On January 5, 2021, a user on TheDonald.win
encouraged Mr. Trump's supporters to ``be prepared to secure
the capitol building,'' claiming that ``there will be plenty of
ex military to guide you.''\140\
---------------------------------------------------------------------------
\138\Justin Hendrix, ``TheDonald.win and President Trump's
Foreknowledge of the Attack on the Capitol,'' Just Security, (Jan. 12,
2022), available at https://www.justsecurity.org/79813/thedonald-win-
and-president-trumps-foreknowledge-of-the-attack-on-the-capitol/.
\139\Id.
\140\SITE Intelligence Group, ``How a Trump Tweet Sparked Plots,
Strategizing to `Storm and Occupy' Capitol with `Handcuffs and Zip
Ties','' (Jan. 9, 2021), available at https://ent.siteintelgroup.com/
Far-Right-/-Far-Left-Threat/how-a-trump-tweet-sparked-plots-
strategizing-to-storm-and-occupy-capitol-with-handcuffs-and-zip-
ties.html.
---------------------------------------------------------------------------
Multiple other posts on TheDonald.win made it clear that
the U.S. Capitol was a target, with one poster writing that
people should bring ``handcuffs and zip ties to DC'' so they
could enact ``citizen's arrests'' of those officials who
certified the election's results.\141\ Another post on
TheDonald.win was headlined ``most important map for January
6th. Form a TRUE LINE around the Capitol and the
tunnels.''\142\ That ``post included a detailed schematic of
Capitol Hill with the tunnels surrounding the complex
highlighted.''\143\ One thread posted on TheDonald.win, and
pertaining to Mr. Trump's December 19, 2020, tweet, reportedly
received more than ``5,900 replies and over 24,000
upvotes.''\144\ The ``general consensus among the users'' on
these threads ``was that Trump had essentially tweeted
permission to disregard the law in support of him.''\145\ For
example, one user wrote, ``[Trump] can't exactly openly tell
you to revolt. This is the closest he'll ever get.''\146\
---------------------------------------------------------------------------
\141\Id.
\142\Alex Thomas, ``Team Trump was in bed with online
insurrectionists before he was even elected,'' daily dot, (Jan. 15,
2021, updated Feb. 15, 2021), available at https://www.dailydot.com/
debug/dan-scavino-reddit-donald-trump-disinformation/.
\143\Id.
\144\SITE Intelligence Group, ``How a Trump Tweet Sparked Plots,
Strategizing to `Storm and Occupy' Capitol with `Handcuffs and Zip
Ties','' (Jan. 9, 2021), available at https://ent.siteintelgroup.com/
Far-Right-/-Far-Left-Threat/how-a-trump-tweet-sparked-plots-
strategizing-to-storm-and-occupy-capitol-with-handcuffs-and-zip-
ties.html.
\145\Id.
\146\Id.
---------------------------------------------------------------------------
Just weeks before the January 6, 2021, attack on the U.S.
Capitol, former-President Trump shared content on Twitter that
apparently originated on TheDonald.win. On December 19, 2020,
former-President Trump tweeted a video titled, ``FIGHT FOR
TRUMP!- SAVE AMERICA- SAVE THE WORLD.''\147\ The video had
reportedly appeared on TheDonald.win 2 days earlier.\148\
---------------------------------------------------------------------------
\147\Donald Trump (@realDonaldTrump), Twitter, Dec. 19, 2020 10:24
a.m. ET, available at https://web.archive.org/web/20201219182441/
https://twitter.com/realdonaldtrump/status/1340362336390004737
(archived).
\148\Justin Hendrix, ``TheDonald.win and President Trump's
Foreknowledge of the Attack on the Capitol,'' Just Security (Jan. 12,
2022), available at https://www.justsecurity.org/79813/thedonald-win-
and-president-trumps-foreknowledge-of-the-attack-on-the-capitol/.
---------------------------------------------------------------------------
Mr. Scavino also promoted the candidacy of Donald Trump and
other political candidates on his own social media account. For
example, he produced these public messages on Twitter:
On October 16, 2020, 8:26 p.m. ET, from Dan
Scavino Jr.[American flag][Eagle]:
[Alert]HAPPENING NOW!! 10/16/20-Macon, GA!
MAGA[American flag][Eagle] [Globe with
meridians]Vote.DonaldJTrump.com'' [Four pictures of a
presidential campaign rally]\149\
---------------------------------------------------------------------------
\149\Dan Scavino Jr.[American flag][Eagle] (@DanScavino), Twitter,
Oct. 16, 2020, 8:26 p.m. ET, available at https://twitter.com/
DanScavino/status/1317260632308224000.
On November 6, 2020, 12:04 a.m. ET, from Dan
---------------------------------------------------------------------------
Scavino Jr.[American flag][Eagle]:
[Tweeting a Fox News segment, ``Charges of Mail-In
Ballot Fraud are Rampant'']\150\
---------------------------------------------------------------------------
\150\Dan Scavino Jr.[American flag][Eagle] (@DanScavino), ``[Video;
https://twitter.com/i/status/1324578313420111872]'' Twitter, Nov. 6,
2020, 12:04 a.m. ET, available at https://twitter.com/DanScavino/
status/1324578313420111872.
On December 6, 2020, 12:34 a.m. ET, from Dan
---------------------------------------------------------------------------
Scavino Jr.[American flag][Eagle]:
``I am thrilled to be back in Georgia, w/1,000's of
proud, hardworking American Patriots! We are gathered
together to ensure that @sendavidperdue & @KLoeffler
WIN the most important Congressional runoff in American
History. At stake in this election is control of the
Senate!'' -DJT [Video; https://twitter.com/i/status/
1335457640072310784]\151\
---------------------------------------------------------------------------
\151\Dan Scavino Jr.[American flag][Eagle] (@DanScavino), Twitter,
Dec. 6, 2020, 12:34 a.m. ET, available at https://twitter.com/
DanScavino/status/1335457640072310784.
On January 2, 2021, 9:04 p.m. ET, from Dan
---------------------------------------------------------------------------
Scavino Jr.[American flag][Eagle]:
[Tweeting out a video encouraging people to ``Be a Part
of History'' and ``Join the March'' on January
6th.]\152\
---------------------------------------------------------------------------
\152\Dan Scavino Jr.[American flag][Eagle] (@DanScavino), ``[Video;
https://twitter.com/i/status/1345551501440245762], Twitter, Jan. 2,
2021, 9:04 p.m. ET, available at https://twitter.com/danscavino/status/
1345551501440245762.
The Select Committee has a legitimate interest in seeking
information from Mr. Scavino about his activities that were
outside the scope of his responsibilities as a Federal
Government official. It is beyond reasonable dispute that the
``stolen election'' narrative played a major role in motivating
the violent attack on the Capitol. Violent rioters' social
media posts, contemporaneous statements on video, and filings
in Federal court provide overwhelming evidence of this. To take
just a few examples--though there are many others--statements
from individuals charged with crimes associated with the
---------------------------------------------------------------------------
January 6th attack include:
``I'm going to be there to show support for
our president and to do my part to stop the steal and
stand behind Trump when he decides to cross the
rubicon.''\153\
---------------------------------------------------------------------------
\153\Criminal Complaint, United States of America v. Ronald L.
Sandlin, (D.D.C.) (No. 21-cr-00088) (Jan. 20, 2020), available at
https://www.justice.gov/opa/page/file/1362396/download.
---------------------------------------------------------------------------
``Trump is literally calling people to DC in
a show of force. Militias will be there and if there's
enough people they may fucking storm the buildings and
take out the trash right there.''\154\
---------------------------------------------------------------------------
\154\Indictment, United States of America v. Marshall Neefe and
Charles Bradford Smith, (D.D.C.) (No. 21-cr-567) (Sept. 8, 2021), ECF
1, at p. 6, available at https://www.justice.gov/usao-dc/case-multi-
defendant/file/1432686/download.
---------------------------------------------------------------------------
``Trump said It's gonna be wild!!!!!!! It's
gonna be wild !!!!!!! He wants us to make it WILD
that's what he's saying. He called us all to the
Capitol and wants us to make it wild!!! Sir Yes Sir!!!
Gentlemen we are heading to DC pack your shit!!''\155\
---------------------------------------------------------------------------
\155\First Superseding Indictment, United States of America v.
Caldwell et al., (D.D.C.) (No. 21-cr-28) (Feb. 19, 2021) ECF 27, at p.
9, available at https://www.justice.gov/usao-dc/case-multi-defendant/
file/1369071/download.
Mr. Scavino's promotion of the January 6th events, his
reported participation in multiple conversations about
challenging the election, and his reported presence with then-
President Trump as the attack unfolded and in its aftermath
make his testimony essential to fully understanding the events
of January 6th, including Presidential activities and responses
that day. 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.
B. Mr. Scavino has refused to comply with the Select Committee's
subpoena for testimony and documents.
On September 23, 2021, Chairman Thompson signed and issued
a subpoena, cover letter, and schedule to Mr. Scavino ordering
the production of both documents and testimony relevant to the
Select Committee's investigation into ``important activities
that led to and informed the events at the Capitol on January
6, 2021.''\156\ Chairman Thompson's letter identified public
reports describing Mr. Scavino's activities and past
statements, and documented some of the public information that
gave the Select Committee reason to believe Mr. Scavino
possesses information about matters within the scope of the
Select Committee's inquiry.
---------------------------------------------------------------------------
\156\See Appendix II, Ex. 6.
---------------------------------------------------------------------------
The specific documents the Chairman ordered produced are
found in the schedule in Appendix II, Ex. 6. The schedule
identified documents including but not limited to those
reflecting Mr. Scavino's role in planning and promoting the
January 6, 2021, rally and march in support of Mr. Trump; Mr.
Trump's participation in the rally and march; Mr. Scavino's
communications with Members of Congress or their staff about
plans for January 6th; and communications with others known to
be involved with the former President's 2020 election campaign
and subsequent efforts to undermine or cast doubt on the
results of that election.
The subpoena required Mr. Scavino to produce the requested
documents to the Select Committee on October 7, 2021, at 10
a.m. ET and required Mr. Scavino's presence for the taking of
testimony on October 15, 2021, at 10 a.m.\157\
---------------------------------------------------------------------------
\157\Id.
---------------------------------------------------------------------------
The Select Committee was unable to locate Mr. Scavino for
service and therefore issued a new subpoena on October 6,
2021.\158\ On October 8, 2021, U.S. Marshals served this new
subpoena at Mar-a-Lago, Mr. Scavino's reported place of
employment, to Ms. Susan Wiles, who represented herself as
chief of staff to former-President Trump and as authorized to
accept service on Mr. Scavino's behalf.\159\ The subpoena
required that Mr. Scavino produce responsive documents not
later than October 21, 2021, and that Mr. Scavino appear for a
deposition on October 28, 2021.\160\
---------------------------------------------------------------------------
\158\See Appendix II, Ex. 1.
\159\Id.
\160\Id.
---------------------------------------------------------------------------
On October 20, 2021, Stanley E. Woodward, Jr., of Brand
Woodward Law notified the Select Committee that his firm had
been retained to represent Mr. Scavino.\161\ Per a telephone
conversation later that day, Mr. Woodward notified the Select
Committee that he was still in the process of ascertaining
whether Mr. Scavino had responsive documents and requested an
extension of the deadlines in the October 6, 2021, subpoena.
The Select Committee granted an extension of 1 week, delaying
the production deadline to October 28th and the deposition to
November 4th.\162\
---------------------------------------------------------------------------
\161\See Appendix II, Ex. 2.
\162\Id.
---------------------------------------------------------------------------
On October 27, 2021, Mr. Woodward emailed to request an
additional extension, and the Select Committee granted that
request, postponing the production deadline to November 4th and
the deposition to November 12th.\163\
---------------------------------------------------------------------------
\163\Id.
---------------------------------------------------------------------------
On November 2, 2021, Mr. Woodward emailed to express
difficulty in meeting the document production deadline. The
following day, the Select Committee agreed to an additional
production postponement to November 5th.\164\
---------------------------------------------------------------------------
\164\Id.
---------------------------------------------------------------------------
On November 5, 2021, rather than produce any responsive
documents in his client's possession, Mr. Woodward communicated
by letter that his client would not be producing any documents.
Instead, he asserted vague claims of executive privilege that
were purportedly relayed by the former President, but which
have never been presented by the former President to the Select
Committee.\165\ Mr. Woodward's letter cited an attached October
6, 2021, letter from former-President Trump's counsel Justin
Clark to Mr. Scavino that instructed him to ``invoke any
immunities and privileges you may have from compelled
testimony,'' ``not produce any documents concerning your
official duties,'' and ``not provide any testimony concerning
your official duties.''\166\
---------------------------------------------------------------------------
\165\See Appendix II, Ex. 7.
\166\Id.
---------------------------------------------------------------------------
On November 9, 2021, the Select Committee Chairman
responded to Mr. Woodward requesting that Mr. Scavino provide a
``privilege log that specifically identifies each document and
each privilege that he believes applies,'' and explained to Mr.
Scavino that ``categorical claims of executive privilege are
improper, and any claim of executive privilege must be asserted
narrowly and specifically.'' The Chairman also reminded Mr.
Woodward that the subpoena demanded ``all communications
including those conducted on Mr. Scavino's personal social
media or other accounts and with outside parties whose
inclusion in a communication with Mr. Scavino would mean that
no executive privilege claim can be applicable.''\167\
---------------------------------------------------------------------------
\167\See Appendix II, Ex. 8.
---------------------------------------------------------------------------
The November 9th letter also detailed, at Mr. Woodward's
request, the various specific topics the Select Committee
wished to discuss with Mr. Scavino at his deposition scheduled
for November 12, 2021, and requested that Mr. Woodward identify
topics that he agreed did not implicate any privileges and
identify with specificity any privileges that did apply to each
specific topic.
On November 10, 2021, following correspondence with Mr.
Woodward, the Select Committee agreed to an additional
extension to November 15, 2021, for document production and
November 19, 2021, for the deposition, to allow Mr. Woodward
additional time to discuss the November 9th letter with his
client.\168\
---------------------------------------------------------------------------
\168\See Appendix II, Ex. 2.
---------------------------------------------------------------------------
On November 15th, Mr. Woodward sent a letter refusing to
provide the requested privilege log and asserted that a such
log would undermine the former President's assertions of
privilege. Instead, Mr. Woodward identified categories of
documents he believed to be privileged, including
communications between Mr. Scavino and Members of Congress, and
between Mr. Scavino and ``non-Government third-parties.''\169\
---------------------------------------------------------------------------
\169\See Appendix II, Ex. 9.
---------------------------------------------------------------------------
On November 18, 2021, Mr. Woodward sent another letter
wherein he, for the first time, and following weeks of
discussions about the items listed in the October 6th subpoena,
challenged the service of that subpoena as deficient. He also
challenged the Select Committee's legislative purpose and
demanded that the Select Committee provide a detailed
explanation of the pertinence of every line of inquiry it
intended to pursue at the scheduled deposition.\170\
---------------------------------------------------------------------------
\170\See Appendix II, Ex. 10.
---------------------------------------------------------------------------
On November 23, 2021, the Select Committee issued yet
another subpoena to Mr. Scavino, whose counsel agreed to accept
service.\171\ The November 23rd subpoena granted a final
extension of the document production deadline to November 29,
2021, and the deposition to December 1, 2021. The same day, the
Select Committee transmitted a letter explaining the relevance
of Mr. Scavino's testimony to the Select Committee's
authorizing resolution and responding to the numerous specious
objections in the November 18th letter.\172\
---------------------------------------------------------------------------
\171\See Appendix II, Ex. 11.
\172\See Appendix II, Ex. 3.
---------------------------------------------------------------------------
On November 26, 2021, Mr. Woodward again wrote to the
Select Committee and declined to comply with the subpoena for
documents and testimony unless the Select Committee provided a
detailed explanation of the pertinence of each of its expected
questions and lines of inquiry for Mr. Scavino.\173\ He also
reasserted Mr. Scavino's refusal to testify in light of Trump
v. Thompson,\174\ the since-resolved litigation regarding Mr.
Trump's ability to assert executive privilege over documents
the incumbent President has already approved for release.
---------------------------------------------------------------------------
\173\See Appendix II, Ex. 12.
\174\(D.C. Cir., No. 21-5254) (appeal from D.D.C. No. 21-cv-02769)
---------------------------------------------------------------------------
Mr. Scavino failed to produce any documents by the November
29, 2021, deadline, and did not appear for his deposition on
December 1, 2021.\175\
---------------------------------------------------------------------------
\175\See Appendix II, Ex. 13.
---------------------------------------------------------------------------
On December 9, 2021, the Select Committee sent a letter to
Mr. Woodward documenting Mr. Scavino's failure to comply with
the subpoena and informing him that the Select Committee would
proceed to enforcement.\176\
---------------------------------------------------------------------------
\176\See Appendix II, Ex. 14.
---------------------------------------------------------------------------
On December 13, 2021, Mr. Woodward responded in a letter
disputing that Mr. Scavino had failed to cooperate with the
investigation and reiterating many of his previous
objections.\177\
---------------------------------------------------------------------------
\177\See Appendix II, Ex. 15.
---------------------------------------------------------------------------
On February 4, 2022, in light of the Supreme Court's denial
of a stay and injunction sought by former-President Trump in
Trump v. Thompson\178\ to prevent the National Archives from
providing documents to the Select Committee on the basis of
executive privilege, the Select Committee again contacted Mr.
Scavino and gave him an additional opportunity to comply.\179\
---------------------------------------------------------------------------
\178\595 U.S._ (2022) (No. 21A272) (Jan. 19, 2022).
\179\See Appendix II, Ex. 4.
---------------------------------------------------------------------------
On February 8, 2022, Mr. Woodward responded, asserting that
Mr. Scavino still intended to withhold information at Mr.
Trump's direction until the ultimate resolution of Mr. Trump's
claims.\180\
---------------------------------------------------------------------------
\180\See Appendix II, Ex. 16.
---------------------------------------------------------------------------
C. Mr. Scavino's purported basis for non-compliance is wholly without
merit.
Congress has the power to compel witnesses to testify and
produce documents.\181\ An individual--whether a member of the
public or an executive branch official--has a legal (and
patriotic) obligation to comply with a duly issued and valid
congressional subpoena, unless a valid and overriding privilege
or other legal justification permits non-compliance.\182\ In
United States v. Bryan, the Supreme Court stated:
---------------------------------------------------------------------------
\181\See supra, at note 80.
\182\See supra, at note 81.
A subpoena has never been treated as an invitation to a game of
hare and hounds, in which the witness must testify only if
cornered at the end of the chase. If that were the case, then,
indeed, the great power of testimonial compulsion, so necessary
to the effective functioning of courts and legislatures, would
be a nullity. We have often iterated the importance of this
public duty, which every person within the jurisdiction of the
Government is bound to perform when properly summoned.\183\
---------------------------------------------------------------------------
\183\United States v. Bryan, 339 U.S. 323, 331 (1950).
It is important to note that the Select Committee sought
testimony from Mr. Scavino on topics and interactions as to
which there can be no conceivable privilege claim. Examples of
those are provided below. The Select Committee is entitled to
Mr. Scavino's testimony on each of them, regardless of his
claims of privilege over other categories of information and
communications. In United States v. Nixon, 418 U.S. 683, 703-16
(1974), the Supreme Court recognized an implied constitutional
privilege protecting Presidential communications. The Court
held though that the privilege is qualified, not absolute, and
that it is limited to communications made ``in performance of
[a President's] responsibilities of his office and made in the
process of shaping policies and making decisions.''\184\
---------------------------------------------------------------------------
\184\Nixon v. Administrator of General Services (GSA), 433 U.S.
425, 449 (1977) (internal quotes and citations omitted).
---------------------------------------------------------------------------
Executive privilege is a recognized privilege that, under
certain circumstances, may be invoked to bar congressional
inquiry into communications covered by the privilege. Mr.
Scavino has refused to testify in response to the subpoena
ostensibly based on broad assertions of executive privilege
purportedly asserted by former-President Trump. Even if any
such privilege may have been applicable to some aspect of Mr.
Scavino's testimony, he was required to produce a privilege log
noting any applicable privileges with specificity and to appear
before the Select Committee for his deposition, answer any
questions concerning non-privileged information, and assert any
such privilege on a question-by-question basis.
1. President Biden decided not to invoke executive
privilege to prevent testimony by Mr. Scavino, and
Mr. Trump has not invoked executive privilege with
respect to Mr. Scavino.
As described above, President Biden considered whether to
invoke executive privilege and whether to assert immunity with
regard to the subpoena for Mr. Scavino.\185\ He declined to do
so with respect to particular subjects within the purview of
the Select Committee, and the White House informed Mr.
Scavino's counsel of that decision in a letter on March 15,
2022.\186\ President Biden made this determination based on his
assessment of the ``unique and extraordinary nature of the
matters under investigation.''\187\
---------------------------------------------------------------------------
\185\See Appendix II, Ex. 5.
\186\Id.
\187\Id.
---------------------------------------------------------------------------
Former-President Trump has had no communication with the
Select Committee. In a November 5th letter to the Select
Committee, Mr. Scavino's attorney referred to correspondence
from former-President Trump's attorney, Justin Clark, in which
Mr. Clark asserted that the Select Committee subpoena seeks
information that is ``protected from disclosure by the
executive and other privileges, including among others the
presidential communications, deliberative process, and
attorney-client privileges.''\188\ The Committee has received
no such correspondence from or on behalf of former-President
Trump. Without a formal assertion of executive privilege by Mr.
Trump to the Select Committee, Mr. Scavino cannot establish the
foundational element of a claim of executive privilege: an
invocation of the privilege by the executive.
---------------------------------------------------------------------------
\188\See Appendix II, Ex. 7.
---------------------------------------------------------------------------
In United States v. Reynolds, 345 U.S. 1, 7-8 (1953), the
Supreme Court held that executive privilege:
[B]elongs to the Government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to
be lightly invoked. There must a formal claim of privilege,
lodged by the head of the department which has control over the
matter, after actual personal consideration by that
officer.\189\
---------------------------------------------------------------------------
\189\See also supra, at note 88.
Here, the Select Committee has not been provided with any
formal invocation of executive privilege by the President or
the former President or any other employee of the executive
branch. Mr. Scavino's third-hand, categorical assertion of
privilege, without any description of the specific documents or
specific testimony over which privilege is claimed, is
insufficient to activate a claim of executive privilege.
2. Even if Mr. Trump had actually invoked executive
privilege, the privilege would not bar the Select
Committee from lawfully obtaining the documents and
testimony it seeks from Mr. Scavino.
Executive privilege does not extend to discussions relating
to non-governmental business or among private citizens.\190\ In
In re Sealed Case (Espy), the D.C. Circuit explained that the
Presidential communications privilege ``only applies to
communications [with close Presidential advisers] in the course
of performing their function of advising the President on
official government matters.''\191\ The court stressed: ``The
Presidential communications privilege should never serve as a
means of shielding information regarding governmental
operations that do not call ultimately for direct decision-
making by the President.''\192\ As noted by the Supreme Court,
the privilege is ``limited to communications `in performance of
[a President's] responsibilities,' `of his office,' and made
`in the process of shaping policies and making
decisions.'''\193\ And the D.C. Circuit recently considered and
rejected former-President Trump's executive privilege
assertions over information sought by the Select Committee.
That court concluded that ``the profound interests in
disclosure advanced by President Biden and the January 6th
Committee far exceed his generalized concerns for Executive
Branch confidentiality.''\194\
---------------------------------------------------------------------------
\190\Nixon v. GSA, 433 U.S. at 449.
\191\Espy, 121 F.3d 729, 752 (D.C. Cir. 1997).
\192\Id.
\193\Nixon v. GSA, 433 U.S. at 449 (quoting U.S. v. Nixon, 418 U.S.
683 (1974) (internal citations omitted)).
\194\Trump v. Thompson, 2021 U.S. App. LEXIS 36315, at *46 (D.C.
Cir. Dec. 9, 2021).
---------------------------------------------------------------------------
The Select Committee seeks information from Mr. Scavino on
a wide range of subjects that it is inconceivable executive
privilege would reach. For example, the Select Committee seeks
information from Mr. Scavino about his interactions with
private citizens, Members of Congress, or others outside the
White House related to the 2020 election or efforts to overturn
its results. And, among other things, the Select Committee also
seeks information from Mr. Scavino about his use of personal
communications accounts and devices.
Even with respect to Select Committee inquiries that
involve Mr. Scavino's direct communications with Mr. Trump, it
is well-established that executive privilege does not bar
Select Committee access to that information. Only
communications that relate to official Government business and
Presidential decision-making on those official matters can be
covered by the Presidential communications privilege.\195\
Here, Mr. Scavino's conduct regarding several subjects of
concern to the Select Committee is not related to official
Government business. These include Mr. Scavino's participation
in calls and meetings that clearly concerned Mr. Trump's
campaign rather than his official Government business;
participation in meetings with Mr. Trump and others about a
strategy for reversing the outcome of the 2020 election; or
efforts to promote the January 6th rally on the Ellipse.
---------------------------------------------------------------------------
\195\Nixon v. GSA, 433 U.S. at 449; cf. In re Lindsey, 148 F.3d
1100, 1106 (D.C. Cir. 1998) (Deputy White House Counsel's ``advice [to
the President] on political, strategic, or policy issues, valuable as
it may have been, would not be shielded from disclosure by the
attorney-client privilege'').
---------------------------------------------------------------------------
Moreover, even with respect to any subjects of concern that
arguably involve official Government business, executive
privilege is a qualified privilege and the Select Committee's
need for this information to investigate the facts and
circumstances surrounding the January 6th assault on the U.S.
Capitol and the Nation's democratic institutions far outweighs
any executive branch interest in maintaining
confidentiality.\196\ As noted by the White House, ``an
assertion of executive privilege is not in the national
interest, and therefore is not justified, with respect to
particular subjects within the purview of the Select
Committee.''\197\
---------------------------------------------------------------------------
\196\Trump v. Thompson, 2021 U.S. App. LEXIS 36315, at *46 (D.C.
Cir. Dec. 9, 2021).
\197\See Appendix II, Ex. 5.
---------------------------------------------------------------------------
3. Mr. Scavino is not immune from testifying or producing
documents in response to the subpoena.
Even if some aspect of Mr. Scavino's testimony was shielded
by executive privilege, he was required to appear for his
deposition and assert executive privilege on a question-by-
question basis.\198\ Mr. Scavino's refusal to do so made it
impossible for the Select Committee to consider any good-faith
executive privilege assertions.
---------------------------------------------------------------------------
\198\Committee on the Judiciary v. Miers, 558 F. Supp.2d 53, 106
(D.D.C. 2008) (``Ms. Miers may assert executive privilege in response
to any specific questions posed by the Committee'' and ``she must
appear before the Committee to provide testimony, and invoke executive
privilege where appropriate'').
---------------------------------------------------------------------------
Mr. Scavino has refused to appear for a deposition based on
his purported reliance on alleged ``absolute testimonial
immunity.'' No court has recognized any such immunity, and Mr.
Scavino has not provided any rationale for applying any form of
immunity to his unofficial actions assisting Mr. Trump's
campaign to overturn the election. President Biden--who now
serves as the President--has declined to assert immunity in
response to the subpoena to Mr. Scavino.
As noted above,\199\ the general theory that a current or
former White House senior advisor may be immune from testifying
before Congress is based entirely on internal memoranda from
OLC, and courts have uniformly rejected this theory.\200\ But,
as was also noted above,\201\ those internal OLC memoranda do
not address a situation in which the incumbent President has
decided to not assert privilege, and by their own terms they
apply only to testimony ``about [a senior official's] official
duties,'' not testimony about unofficial actions or private
conduct.\202\
---------------------------------------------------------------------------
\199\See supra, at notes 101-103.
\200\Id.
\201\Id.
\202\Id.
---------------------------------------------------------------------------
Many of the topics Chairman Thompson identified in his
correspondence with Mr. Scavino's counsel are unrelated to Mr.
Scavino's official duties and would neither fall under the
reach of any ``absolute immunity'' theory nor any privilege
whatsoever. For instance:
Mr. Scavino was not conducting official and
privileged business to the extent he attended
discussions regarding efforts to urge State legislators
to overturn the results of the November 2020 election
and guarantee a second term for Mr. Trump.
Mr. Scavino was not conducting official and
privileged business to the extent he assisted Mr. Trump
with campaign-related social media communications,
including communications recruiting a violent crowd to
Washington, spreading false information regarding the
2020 election, and any other communications provoking
violence on January 6th.
Mr. Scavino was not conducting official and
privileged business to the extent he communicated with
organizers of the January 6, 2021, rally, including
Kylie Kremer and Katrina Pierson, regarding messaging,
speakers, and even his own appearance and scheduled
remarks at the event, which was not an official White
House event but rather a campaign appearance.\203\
---------------------------------------------------------------------------
\203\Documents on file with the Select Committee.
---------------------------------------------------------------------------
Mr. Scavino was not engaged in official and
privileged business to the extent he used his personal
social media accounts and devices to coordinate with
Trump campaign officials, including Jason Miller,
throughout the fall and winter of 2020 regarding
messaging, campaign events, purported election fraud,
and attempts to overturn the 2020 election
results.\204\
---------------------------------------------------------------------------
\204\Documents on file with the Select Committee.
---------------------------------------------------------------------------
Mr. Scavino was not engaged in official and
privileged business to the extent he counseled Mr.
Trump regarding whether, how, and when to challenge or
concede the 2020 election.
The Select Committee specifically identified to Mr. Scavino
these and other topics as subjects for his deposition
testimony, and he had the legal obligation to appear before the
Select Committee and address them on the record.
D. Mr. Scavino's failure to appear or produce documents in response to
the subpoena warrants holding Mr. Scavino in contempt.
An individual who fails or refuses to comply with a House
subpoena may be cited for contempt of Congress.\205\ Pursuant
to 2 U.S.C. Sec. 192, the willful refusal to comply with a
congressional subpoena is punishable by a fine of up to
$100,000 and imprisonment for up to 1 year. A committee may
vote to seek a contempt citation against a recalcitrant
witness. This action is then reported to the House. If a
contempt resolution is adopted by the House, the matter is
referred to a U.S. Attorney, who has a duty to refer the matter
to a grand jury for an indictment.\206\
---------------------------------------------------------------------------
\205\Eastland v. United States Servicemen's Fund, 421 U.S. 491, 515
(1975).
\206\See 2 U.S.C. Sec. 194.
---------------------------------------------------------------------------
In his November 9th and November 23rd letters to Mr.
Scavino's counsel, the Chairman of the Select Committee advised
Mr. Scavino that his claims of executive privilege were not
well-founded and did not absolve him of his obligation to
produce documents and testify in deposition.\207\ The Chairman
made clear that the Select Committee expected Mr. Scavino to
produce documents and to appear for his deposition, which was
ultimately scheduled for December 1st. And on February 4, 2022,
the Chairman again invited Mr. Scavino to appear before the
Select Committee in light of the resolution of Trump v.
Thompson. The Chairman again warned Mr. Scavino that his
continued non-compliance would put him in jeopardy of a vote to
refer him to the House to consider a criminal contempt
referral. Mr. Scavino's failure to appear for deposition or
produce responsive documents in the face of this clear
advisement and warning by the Chairman constitutes a willful
failure to comply with the subpoena.
---------------------------------------------------------------------------
\207\See Appendix II, Exs. 8, 11.
---------------------------------------------------------------------------
Select Committee Consideration
The Select Committee met on Monday, March 28, 2022, with a
quorum being present, to consider this Report and ordered it
and the Resolution contained herein to be favorably reported to
the House, without amendment, by a recorded vote of 9 ayes to 0
noes.
Select Committee Vote
Clause 3(b) of rule XIII of the Rules of the U.S. House of
Representatives requires the Select Committee to list the
recorded votes during consideration of this Report:
1. A motion by Ms. Cheney to report the Select Committee
Report on a Resolution Recommending that the House of
Representatives find Peter K. Navarro and Daniel Scavino, Jr.,
in Contempt of Congress for Refusal to Comply with Subpoenas
Duly Issued by the Select Committee to Investigate the January
6th Attack on the United States Capitol favorably to the House
was agreed to by a recorded vote of 9 ayes to 0 noes (Rollcall
No. 4).
Select Committee Rollcall No. 4
Motion by Ms. Cheney to Favorably Report
Agreed to: 9 ayes to 0 noes
------------------------------------------------------------------------
Members Vote
------------------------------------------------------------------------
Ms. Cheney, Vice Chair.................................... Aye
Ms. Lofgren............................................... Aye
Mr. Schiff................................................ Aye
Mr. Aguilar............................................... Aye
Mrs. Murphy (FL).......................................... Aye
Mr. Raskin................................................ Aye
Mrs. Luria................................................ Aye
Mr. Kinzinger............................................. Aye
Mr. Thompson (MS), Chairman............................... Aye
------------------------------------------------------------------------
Select Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII, the Select
Committee advises that the oversight findings and
recommendations of the Select Committee are incorporated in the
descriptive portions of this Report.
Congressional Budget Office Estimate
The Select Committee finds the requirements of clause
3(c)(2) of rule XIII and section 308(a) of the Congressional
Budget Act of 1974, and the requirements of clause3(c)(3) of
rule XIII and section 402 of the Congressional Budget Act of
1974, to be inapplicable to this Report. Accordingly, the
Select Committee did not request or receive a cost estimate
from the Congressional Budget Office and makes no findings as
to the budgetary impacts of this Report or costs incurred to
carry out the Report.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII, the objective of
this Report is to enforce the Select Committee's authority to
investigate the facts, circumstances, and causes of the January
6th attack and issues relating to the interference with the
peaceful transfer of power, in order to identify and evaluate
problems and to recommend corrective laws, policies,
procedures, rules, or regulations; and to Cenforce the Select
Committee's subpoena authority found in section 5(c)(4) of
House Resolution 503.
Appendix I
Exhibit 1 -- Subpoena to Peter K. Navarro (Feb. 9, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 2 -- Email from Peter K. Navarro to Select Committee Staff
(Feb. 9, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 3 -- Email from Select Committee Staff to Peter K. Navarro
(Feb. 24, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 4 -- Email Exchange between Select Committee Staff and Peter K.
Navarro (Feb. 27, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 5 -- Email from Peter K. Navarro to Select Committee Staff
(Feb. 28, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 6 -- Letter from White House Counsel to Peter K. Navarro (Feb.
28, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 7 -- Email from Select Committee Staff to Peter K. Navarro
(Mar. 1, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 8 -- Deposition that Memorialized Peter K. Navarro's Failure to
Appear before the Select Committee (Mar. 2, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Appendix II
Exhibit 1 -- Subpoena to Daniel Scavino, Jr. (Oct. 6, 2021 )
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 2 -- All Email Correspondence between Select Committee Staff
and Counsel for Mr. Scavino
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 3 -- Letter from Chairman Thompson to Counsel for Mr. Scavino
(Nov. 23, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 4 -- Letter from Chairman Thompson to Counsel for Mr. Scavino
(Feb. 4, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 5 -- Letter from White House Counsel to Counsel for Mr. Scavino
(Mar. 15, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 6 -- Subpoena to Daniel Scavino, Jr. (Sept. 23, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 7 -- Letter from Counsel for Mr. Scavino to Chairman Thompson
(Nov. 5, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 8 -- Letter from Chairman Thompson to Counsel for Mr. Scavino
(Nov. 9, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 9 -- Letter from Counsel for Mr. Scavino to Chairman Thompson
(Nov. 15, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 10 -- Letter from Counsel for Mr. Scavino to Chairman Thompson
(Nov. 18, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 11 -- Subpoena to Daniel Scavino, Jr. (Nov. 23, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 12 -- Letter from Counsel for Mr. Scavino to Chairman Thompson
(Nov. 26, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 13 -- Deposition that Memorialized Daniel Scavino, Jr.'s
Failure to Appear before the Select Committee (Dec. 1, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 14 -- Letter from Chairman Thompson to Counsel for Mr. Scavino
(Dec. 9, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 15 -- Letter from Counsel for Mr. Scavino to Chairman Thompson
(Dec. 13, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit 16 -- Letter from Counsel for Mr. Scavino to Chairman Thompson
(Feb. 8, 2022)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]