In United States v. Navarro, No. 24-3006 (DC Cir. July 21, 2026), the DC Circuit held that a recipient’s belief that executive privilege applies is not a justification for ignoring a congressional subpoena. The court affirmed Peter Navarro’s conviction for contempt of Congress stemming from his failure to comply with a subpoena issued by the January 6 Select Committee, holding that only the President or an authorized representative can invoke executive privilege. The court reaffirmed that common law privileges apply to congressional subpoenas but held that even when executive privilege applies, it does not excuse a recipient’s decision to ignore a subpoena based on a mistaken belief that privilege has been invoked.

On July 21, 2026, the DC Circuit affirmed Peter Navarro’s conviction for contempt of Congress under 2 USC § 192. See United States v. Navarro, No. 24-3006 (DC Cir. July 21, 2026). The case involved a criminal prosecution arising from a congressional subpoena served on Peter Navarro in 2022 by the US House of Representatives Select Committee to Investigate the January 6 Attack on the US Capitol. The Committee subpoena sought documents related to public statements about the 2020 presidential election in Navarro’s book and related promotional interviews and ordered him to appear for a deposition. Navarro, who had been a White House official during President Trump’s first term, declined to respond to the subpoena. He refused to provide documents, submit to a deposition, or engage with the Committee. In response to the criminal indictment, Navarro filed a motion to dismiss asserting that President Trump had claimed executive privilege. But the district court found that neither Trump nor any authorized official had invoked executive privilege.

The court held that “privilege must be claimed by the President (current or former) or an official authorized by the President to claim it” and rejected Navarro’s argument that a good-faith mistaken belief that Trump had asserted executive privilege could justify Navarro’s noncompliance. The court also affirmed on the independent basis that some of the documents requested could not have been subject to executive privilege in any event, because executive privilege only “applies to communications that presidential advisors and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters.”

While the opinion upholds Navarro’s conviction and affirms a congressional committee’s authority to enforce a subpoena, it recognizes in dicta that “recipients of congressional subpoenas retain common law and constitutional privileges against governmental demands for the disclosure of requested information.” Congressional committees have historically contended that they are not bound by common-law privilege assertions that apply in judicial proceedings. In Trump v. Mazars, 591 US 849 (2020), however, the Supreme Court stated that subpoena “recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.” Navarro and Mazars therefore provide some support for companies and individuals that want to resist congressional demands, particularly where they implicate sensitive legal advice, confidential business information, or other protected categories of information.

In an August 10, 2026, memorandum, the Department of Justice’s Office of Legal Counsel argued that the President can claim executive privilege for communications between “private advisers” and the President or his direct government advisers that concern “official presidential decision-making.” This novel argument might be tested when Congress subpoenas individuals who served as intermediaries between companies and the White House.

Key considerations when facing a congressional subpoena:

• Subpoena Power: Congressional subpoena power is broad. In general, many House committee chairs have the power to issue subpoenas unilaterally, whereas Senate committees are generally subject to more varied committee rules and more commonly require the consent of the Ranking Member.
• Contempt risk: Even where is a strong basis to object or claim privilege, failure to respond creates a risk of contempt proceedings and adverse reputational, commercial, or governmental-relations consequences.
• Preserve responsive information: While objections are being evaluated or asserted, companies should preserve relevant materials, identify custodians, assess data systems, and prepare for potential production, testimony, or negotiated resolutions.
• Keep a record of efforts to engage and accommodate demands: Companies should document their engagement with the issuing committee, ask for accommodations, articulate objections, propose phased or sequenced responses, and preserve a clear record of their efforts.
• Raise specific privilege and confidentiality objections: Protections such as executive privilege, attorney-client privilege, work product, trade secrets, personal privacy, and other doctrines should be evaluated request by request and document by document.

For specific advice on this development and to help your business navigate congressional subpoenas, please contact Rod Rosenstein and Sumon Dantiki.

Alexis Marin, Junior Associate, has contributed to this legal update.

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