Prof. Alan M. Dershowitz, the Felix Frankfurter Professor of Law Emeritus at Harvard Law
School and one of the last honest liberals in America has posted an important analysis of the indictment and arrest of Trump White House advisor Peter Navarro.
Prof. Dershowitz argues that Navarro has a strong claim of executive privilege that should be decided by the courts before any indictment can lawfully issue.
Wrote Prof. Dershowitz:
[A]bsent a judicial order, he cannot lawfully be indicted for invoking executive privilege and refusing to reveal arguably privileged material just because a committee of Congress, controlled by Democrats, has voted that he should.
It's not enough to allow him to appeal after the fact, because information, once revealed, cannot be erased. He is obliged to claim privilege now and refuse to respond.
That is not a crime. It is the constitutionally correct action, argued Mr. Dershowitz.
That is also much the same argument that Mr. Navarro made as he was hauled before a DC Magistrate where he pointed out he had a civil suit going to resolve the matter and that his arrest appeared to be a blatant attempt to prevent him from having his day in court in the civil suit.
But we shouldn’t be surprised that the Biden regime hauled a respected public servant into prison in shackles and kept him incommunicado – denied contact with his counsel and publicly humiliated – because the Biden regime has no interest in finding out the truth about who did what before the January 6, 2020 melee at the U.S. Capitol.
They already know there was no conspiracy to “overturn” the 2020 election, rather there was a careful, well-reasoned effort to use every constitutional tool to expose and correct the vote tallies where evidence of fraud had been reported.
Respected constitutional scholars and lawyers, such as Prof. John Eastman, Members of Congress, and state legislators, all argued that the Electoral College votes could be reviewed or rejected by the Vice President or Congress – that these arguments were novel or previously untested in the courts does not mean they were made in bad faith or were unworthy of a full judicial review, and discussion of them in the White House among the President’s advisors is clearly a matter covered by executive privilege.
As Prof. Dershowitz observed, Peter Navarro's indictment violates several key constitutional rights, including due process, fair warning and executive privilege.
It also violates the separation of powers, under which the courts have the authority to resolve conflicts between the legislative and executive branches over claims of executive privilege in response to legislative subpoenas.
Due process and fair warning require that these issues first be resolved by the courts before an indictment can be issued, argued Mr. Dershowitz. The Biden Justice Department knows the law and it should not be acting lawlessly to make political points.
However, the indictment and public keelhauling of Peter Navarro are about more than making political points, the Biden administration’s goal is to make the process the punishment by bankrupting Mr. Navarro with the cost of defending himself, all while making sure that none of the substantive issues raised in his presumed discussions with the President are ever aired in an unbiased forum.
Every ruling and decision — whether by a judge or Justice Department official — must pass the "shoe on the other foot test." It must be the same regardless of face, name, race, ethnicity, religion, gender or political affiliation, Prof. Dershowitz rightly affirmed.
So, the question must be asked: would this Justice Department have indicted a Democratic former executive official who claimed executive privilege in response to a congressional subpoena?
We know from recent experience the answer is NO. And we also know from recent experience that novel constitutional arguments in opposition to the death penalty, about the right to privacy, the right to be free from arbitrary administrative searches of one’s personal records and other activities of the surveillance state require lawyers to plow new ground in search of justice for their clients.
Certainly, President Donald Trump is entitled to the same rights as any other litigant to discuss, craft and argue his best case, no matter how novel, to find otherwise is to strip all of us of one of our most basic constitutional rights – the right to seek, on our own terms, judicial relief from oppression by the legislative and executive branches of government.
Peter Navarro arrest
January 6 committee
Biden Justice Department
Electoral College vote counting
Separation of Powers