According to new reports from the Wall Street Journal and the Washington Post, the National Archives and the U.S. Department of Justice filed a lawsuit on Wednesday against Peter Navarro, one of former president Donald Trump's advisers. The lawsuit claims that if he was granted legal immunity, he would hand over the emails.
The Presidential Records Act requires him to give the National Archives between 200 and 250 emails from his time working for Trump, but he refuses to do so. When non- official electronic accounts are used to perform official duties, the PRA still applies.
Trump is facing contempt charges for refusing to cooperate with the January 6th Committee that is investigating his coup, as well as for lying about winning the 2020 presidential election. Last month, another advisor to Trump was found guilty of the same charge.
Despite being an anti-vaxer, the White House had a prominent role in advising on the coronaviruses.
Even if the private email account was less secure than the government one, it was still not secure enough for him to forward the messages to his government account.
The lawsuit came from it.
Among other responsibilities, a Covered Individual must copy any Presidential record sent on a “non-official electronic message account” to his official government email account within 20 days, and to otherwise transfer Presidential records received on a non-official account to the National Archives and Records Administration (NARA) at the end of each presidential administration.
It was obvious that Navarro didn't do that. There was a possibility that other people were using at least one private email account. One of the central themes of President Trump's 2016 campaign was that Hillary Clinton should be thrown in jail for using a private email server.
According to the lawsuit, when the National Archives tried to get in touch with him, he didn't reply. He asked for immunity when the Archives got to his lawyers.
The filing was made on Wednesday.
Prior to filing this suit, in an effort to avoid litigation, Department of Justice counsel contacted Mr. Navarro by email and United States mail to secure the Presidential records that Mr. Navarro had not copied to his government email account. Discussions with Mr. Navarro’s counsel to secure the return of Presidential records ultimately proved unsuccessful. Mr. Navarro has refused to return any Presidential records that he retained absent a grant of immunity for the act of returning such documents.
What is the purpose of immunity for the person? The lawsuit doesn't include that part.
Mr. Navarro has always complied with the government's requests for records. Mr. Navarro instructed his lawyers to preserve all of his records, and he expects the government to follow standard processes in good faith to allow him to produce records.
His lawyers said that the government filed its lawsuit.
The Freedom of Information Act doesn't apply to presidential records until five years after the president leaves office, and presidents have the power to restrict access for 12 years after they leave office. If it is necessary, the courts, Congress, and the president can request access to any records during that time. Most of the work done by the January 6th Committee is currently being covered by the "special access" exemption, assuming they get anything from the National Archives.
The Presidential Records Act doesn't differentiate between emails sent and received, meaning that if the public ever sees Navarro's emails, it will be interesting.
The PRA does not separately address the handling of Presidential records received—as opposed to sent—on a non-official electronic account. Id. § 2209. But Presidential records received on a non-official account do not lose their status as Presidential records merely because they exist on a non-official electronic account. See id. § 2201 (defining Presidential records as including records “received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President . . . (emphasis added))). And like all other Presidential records, they are the property of the United States, id. § 2202, and are required to be turned over to the Archivist upon the end of the administration, id. § 2203.
The National Archives should point this out. Maybe they know that some emails that he didn't respond to could implicate him in a shady business. It is not clear what other reason the Archives would have for spelling that out.
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