U.S. District Judge Colleen Kollar-Kotelly ordered Navarro to return the records last March after the Justice Department sued, saying President Donald Trump’s trade and manufacturing policy adviser used at least one nonofficial email account to do government business and failed to copy emails in an official account or respond to the archivist’s request for their return.
For months, however, Navarro’s defense has fought with prosecutors over whether roughly 600 emails constitute official or personal business, including some personal journal entries. In a six-page opinion Tuesday, Kollar-Kotelly said her review of a sampling of 50 emails and their attachments found that at least 24 percent and potentially up to 56 percent of the records did in fact assist in the discharge of presidential duties.
“It is clear that Defendant continues to possess Presidential records that have not been produced to their rightful owner, the United States,” Kollar-Kotelly wrote, adding that if he were an agency responding to a public records request, “an error rate of 25%, particularly when coupled with ‘intransigen[ce]’ by the producing party, is ‘unacceptably high’ and suggests that many documents have been improperly withheld.”
Kollar-Kotelly said it was unclear which category some records fell into. But, she added, “the mere fact that the material is a journal entry does not mean it is a personal record, particularly as the journal entries include work-related topics.” Likewise, many records related to the 2020 presidential election and its chaotic aftermath, but these were not automatically personal records because they could have a relation to or direct effect on the carrying out of presidential duties, the judge wrote. The legal question is what Navarro prepared the materials for and what he did with them.
The legal trouble is the latest facing Navarro, 74, who faces a four month-prison term for ignoring a subpoena from the House committee investigating the Jan. 6, 2021, Capitol attack. Navarro, who claimed credit for devising a plan to overturn the 2020 election and keep Trump in office, has appealed his conviction at trial last September before a different federal judge on two counts of criminal contempt of Congress.
Kollar-Kotelly gave Navarro until March 20 to review the 600 records and until March 21 to show why he should not face a contempt finding typically punishable by a fine, with a magistrate judge reviewing the records in his stead.
An attorney for Navarro declined to comment.
