A federal appeals court Tuesday upheld a contempt of Congress conviction against Trump ally Peter Navarro tied to his defiance of subpoenas from the panel that investigated the Jan. 6, 2021 attack on the Capitol.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia unanimously upheld Navarro’s two-count contempt conviction for refusing to cooperate with the panel. Navarro, who is and was a senior counselor to President Donald Trump, had argued that executive privilege applied to the subpoena, but the three-judge panel found that a lower court correctly ruled that Trump never invoked that privilege.

“We hold that the authority to invoke executive privilege rests with a president or his designee. In that regard, the district court did not clearly err in finding as a matter of fact that neither President Trump nor a designee invoked executive privilege as to the Select Committee’s subpoena to Dr. Navarro,” the decision said.

The judges ruled that a defendant in a contempt case has to present at least some evidence that a president actively invoked executive privilege. That privilege allows presidents to shield senior officials and advisers from being forced to testify about their conversations and work with the president.

“A court, in other words, cannot simply take a defendant at his word that the President invoked privilege because doing so would impermissibly tangle separation-of-powers lines,” the decision said.

Navarro, currently a senior counselor for the president, was convicted on two counts of contempt of Congress in 2023 after refusing to provide testimony or documents to the select panel investigating the 2021 attack on the Capitol. 

When contacted by committee staff to serve a subpoena, Navarro said he was not represented by counsel and that executive privilege applied. The subpoena covered his work as a private citizen on behalf of the Trump reelection campaign and a report and book he published about the effort to overturn the 2020 election.

After Navarro did not cooperate with the panel, the House voted to hold him in contempt and the Biden administration brought two contempt of Congress charges against him. Navarro sought to assert executive privilege to dismiss the case, and later use it as a defense at trial.

Judge Amit P. Mehta for the U.S. District Court for the District of Columbia ruled that executive privilege did not apply and could not be used as a defense. After a jury trial in 2023, Navarro was convicted on two counts of contempt and sentenced to four months in prison.

Navarro challenged the decisions by Mehta in his D.C. Circuit appeal, arguing that executive privilege should have applied.

The Trump administration has not defended the conviction, resulting in an unusual solo oral argument from Navarro’s attorneys before the D.C. Circuit last year.