Bill Clinton Is Not Peter Navarro: A Constitutional Distinction That Matters

A lazy, surface-level media habitually conflates the statutory duty of a private citizen to comply with a congressional subpoena with the constitutional duty of a senior White House adviser to resist one that implicates executive privilege.

The latest example comes from National Review’s Rich Lowry, who lumps me together with Bill Clinton in a single moral bucket.

That analogy gets the stakes exactly backward.

Lowry’s free trade antipathy to the Trump tariff agenda I have championed in the White House is no secret. Fair enough. Policy disputes are part of democratic life.

What is harder to accept is Lowry’s tariff animus spilling into applause for my imprisonment—and then repackaged as precedent for future subpoena fights involving former presidents.

In urging Clinton to “simply comply” with a congressional subpoena in the Epstein inquiry, Lowry argued that any former restraint against using criminal contempt in politically charged investigations has already been abandoned because Steve Bannon and I went to prison.

The symmetry is rhetorically convenient. It is also legally wrong.

Clinton was subpoenaed as a private citizen regarding private conduct. However controversial the subject matter, a deposition about Jeffrey Epstein does not implicate confidential presidential deliberations or core Article II communications.

If Clinton has Fifth Amendment concerns, he may assert them question by question. But there is no meaningful executive-privilege issue at stake.

In my case, the January 6 Committee subpoena demanded testimony and documents concerning my work as a senior White House adviser, including communications and deliberations involving the president. That is precisely where Congress’s investigative power collides with the constitutional need for presidential independence and confidentiality.

For decades, the Supreme Court has recognized that executive privilege is rooted in the separation of powers. In United States v. Nixon, the Court acknowledged “the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties” and emphasized the president’s need for “complete candor and objectivity from advisers.” The privilege exists to protect the “confidentiality of high-level communications” essential to effective presidential decision-making.

That protection is not ornamental. It is structural.

For roughly five decades, Justice Department guidance has recognized the testimonial immunity of senior presidential advisers and cautioned against criminal contempt prosecutions in unresolved executive-privilege disputes. The purpose is not to elevate advisers above the law. It is to prevent Congress from converting the president’s immediate staff into compulsory witnesses against the presidency itself.

Lowry sidesteps that constitutional collision by reducing it to what might be called a “magic words” problem—the notion that executive privilege must be invoked with perfect procedural formality at precisely the right moment, or else the constitutional issue evaporates. But the dispute over how privilege is invoked—especially when a former president asserts it and an incumbent administration refuses to honor it—is itself a separation-of-powers controversy. Turning that unresolved conflict into a criminal prosecution transforms constitutional safeguards into procedural tripwires.

Conservatives should be wary of that approach. Once executive confidentiality depends on technical invocation rituals rather than constitutional substance, Congress and the Justice Department are handed a roadmap for piercing high-level deliberations whenever political incentives align.

Today, a Republican adviser; tomorrow, a Democratic one.

My case remains on appeal, even though I have already served my sentence. I have no personal incentive to pursue it. I continue the appeal to resolve constitutional questions of first impression that extend far beyond my own circumstances.

Do senior White House advisers possess absolute testimonial immunity when executive privilege is implicated, as the Justice Department has maintained for more than half a century? Is executive privilege presumptive in such disputes, or must it be invoked with particular formalities to carry constitutional force?

If invocation is required, what constitutes a legally sufficient assertion—especially when a former president invokes privilege and an incumbent administration declines to defend it? And before a senior adviser is exposed to criminal liability, do Congress and the executive branch have a constitutional obligation to seek accommodation rather than resort to prosecution?

These are structural separation-of-powers questions. They deserve judicial resolution—not incarceration as a substitute for adjudication.

If I lose my appeal, the consequence will not be personal. It will be precedential.

Future senior advisers in both Republican and Democratic administrations will face the same dilemma: honor executive privilege and risk prison, or testify and weaken the constitutional independence of the presidency.

Either outcome will chill candid advice to the president and erode the deliberative confidentiality the Supreme Court has long recognized as essential to effective executive decision-making.

If criminal contempt becomes the enforcement mechanism for interbranch privilege disputes, Congress will have discovered a powerful new lever over the presidency. The immediate target may be a Republican adviser. The long-term casualty will be presidential candor itself. And once advisers must calculate the risk of imprisonment before speaking freely, the constitutional damage will not be easily undone.

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Peter Navarro is Senior Counselor to the President for Trade and Manufacturing. He served four months in a federal prison while appealing his conviction. Follow his case at www.peternavarro.com

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