I went to prison so that future presidential advisers won’t have to 

“I Went To Prison So You Won’t Have To” is not just the title of my new book — it’s why I am appealing my contempt-of-Congress conviction, even after losing four months of my freedom in a Miami federal prison.

If I lose this landmark case of first impression, which is likely headed to the Supreme Court, future presidential advisers of either party will face the same stark choice I did: either to defend the Constitution’s separation of powers and executive privilege and risk prison, or to dishonor their oath and grovel before a lawfare-wielding Congress.

As the latest development in this case, my legal team is opposing an extraordinary move by the Department of Justice in the D.C. Circuit Court of Appeals to strike its own merits brief and to appoint a friend of the court to argue in its place. This comes after the Justice Department prosecuted me in district court and defended that conviction on appeal.

The only justification the Justice Department offers is that it “has determined that it is no longer taking the same position as the prior administration in this case.” Translation: it’s abandoning its arguments without telling the court or the country why.

But this evasion will not do. The Federal rules of appellate procedure require that motions state their grounds “with particularity.” When the sovereign changes course — especially after three years of weaponized litigation — it must give reasons, not riddles. Anything less flouts the rule and the department’s heightened duty of candor.  

As the Supreme Court has long reminded prosecutors, the job of the Justice Department is just that: to seek justice, not merely to convict. It must act as a disinterested guardian of the public interest.

This is not department’s first whiplash in my case. To indict and convict me, it abandoned more than 50 years of consistent Office of Legal Counsel opinions from across Republican and Democrat administrations, recognizing that senior presidential advisers acting at a president’s direction should not be prosecuted for refusing congressional subpoenas.

That bipartisan support for absolute testimonial immunity for advisors was designed to preserve presidential decision-making and candid advice. The Justice Department's latest about-face, if left unexplained, would further destabilize those separation-of-powers understandings and leave current and former White House aides guessing whether they will be hauled into court — or hauled into a cell.

There is likewise a moral, not just legal, dimension to this case. At the Justice Department's urging, I was ordered to surrender and serve four months in federal prison while my appeal was pending. This is because the department insisted to both the district court and the D.C. Circuit that there were no substantial issues warranting a release pending appeal, despite the government’s own half-century of Office of Legal Counsel jurisprudence and the obvious constitutional questions at the heart of this case.

Now that same Justice Department wants to erase its brief and outsource the argument. You don’t pivot like that unless you’ve finally recognized there are serious constitutional questions to be settled. Translation: I should never have been ordered to prison before my appeal was heard.

On appeal, U.S. v Peter Navarro is what we call a landmark case of first impression that must settle the law regarding several substantial issues. Most importantly, it poses the question of whether a senior White House adviser can be criminally prosecuted for following a president’s lawful instruction not to comply with a congressional subpoena.  

Strip away the politics, and that is the core question — one that reaches all the way back to George Washington’s doctrine of executive privilege and forward to every future presidency. If advisers can be jailed for honoring privilege, then candid advice will die, replaced by lawyered-up self-protection and paralysis in the West Wing. That is not the Constitution the Framers wrote.  Nor was it policy for the 50 years prior to the weaponized Biden Justice Department. 

The Justice Department chose this fight and reversed decades of its own doctrines to win it. It then doggedly insisted that I had no substantial issues so that it could keep me locked up pending appeal. Now, it now seeks to abandon its brief with no explanation 

Why did it change its mind? Where does it stand now on the major substantial issues? These are the answers the defense, the court, any potential friend of the court, and the country must arrive at. 

The D.C. Circuit should say no to the Justice Department. Demand that it give reasons for shrugging off this case. Put the department on the record. Then let the separation-of-powers questions be decided in the sunlight, not in the shadows of an unexplained government retreat.

I went to prison so that future presidential advisers won’t have to. That’s why I am fighting back.

Peter Navarro is the author of "I Went To Prison So You Won’t Have To: A Love and Lawfare Story in Trump Land ." He is the White House Senior Counselor for Trade and Manufacturing. The views expressed in this article are his alone.