Democrats worry Trump team will cherry-pick withheld documents during defense

Democrats are sounding the alarm that President TrumpDonald TrumpNorth Korea conducts potential 6th missile test in a month Kemp leading Perdue in Georgia gubernatorial primary: poll US ranked 27th least corrupt country in the world MORE’s legal team may seek to selectively incorporate undisclosed documents as part of its defense, just months after the White House refused to release such records to House impeachment investigators.

Senate Republicans this week shot down Democratic efforts to prevent Trump’s lawyers from cherry-picking previously unreleased documents to make their case. Now, as the president’s defense team is set to take center stage in the Senate trial on Saturday, Democrats say they fully expect Trump's attorneys to do just that.

“You know that's exactly what they're going to do,” said Sen. Mazie HironoMazie Keiko HironoDemocrats, poised for filibuster defeat, pick at old wounds  Schumer prepares for Senate floor showdown with Manchin, Sinema Dems worry they'll be boxed out without changes to filibuster, voting rules  MORE (D-Hawaii). “This whole trial is calculated to not provide any relevant evidence that the White House should have provided, not provide any witnesses that the White House prevented from being deposed. And the whole thing is to try and just push this through."

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“I consider it a whitewash and a sham,” she added.

As House Democrats conducted their impeachment investigation last year, they subpoenaed the administration for thousands of documents related to Trump’s efforts to press Ukrainian leaders to find dirt on his political rivals. The White House, dismissing the probe as a hoax, did not release any of them.

That stonewalling, combined with Trump’s efforts to block the testimony of key witnesses, led Democrats to charge Trump with obstructing Congress — one of the two impeachment articles senators are now weighing in the trial stage.

Yet those documents may resurface in the coming days when the president’s lawyers take over to offer the president’s defense.

Sen. Mike BraunMichael BraunBiden administration withdraws its vaccine-or-test mandate for businesses Former Sen. Donnelly confirmed as Vatican ambassador The Memo: Supreme Court, Sinema deliver twin blows to Biden MORE (R-Ind.) hinted that Trump’s team is set to release “new information” that would exculpate the president of any wrongdoing. He suggested the documents would pertain to how the investigations into Trump’s conduct were launched to begin with — “the unwholesome origination,” in Braun’s words.

"I think you're going to see when the defense comes along that this was orchestrated from way, way back," Braun said. "There was a lot of maybe new information that will come out in how it got to the point of how we're here in an impeachment trial."

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Trump has suggested the mystery documents could be a wildcard as his team seeks to prove his innocence.

"Honestly, we have all the material,” he said earlier this week in a speech in Davos, Switzerland. “They don't have the material."

Those remarks drew a quick and biting response from Rep. Val DemingsValdez (Val) Venita DemingsDemocrats say change to filibuster just a matter of time Headaches intensify for Democrats in Florida These Senate seats are up for election in 2022 MORE (D-Fla.), one of the seven Democrats prosecuting the impeachment case, who said Trump was admitting he obstructed the impeachment investigation.

“The second article of impeachment was for obstruction of Congress: covering up witnesses and documents from the American people,” she tweeted Wednesday. “This morning the President not only confessed to it, he bragged about it.”

Trump’s legal team, for its part, did not discount the idea of tapping the documents the White House previously withheld from Congress.

"We will use appropriate documents that will be admissible for what this record is. That is the way we are going to do it. I am not going to respond to anything in particular,” Jay SekulowJay Alan SekulowJan. 6 panel releases Hannity texts, asks for cooperation Jan. 6 panel to seek Hannity's cooperation: report GOP political operatives indicted over illegal campaign contribution from Russian national in 2016 MORE, one of Trump’s impeachment lawyers, said Thursday.

That prospect has infuriated Democrats, who are already accusing Senate GOP leaders of conducting an inherently unfair trial that tips the scale toward their White House ally.

“I think they should turn over everything,” said Sen. Pat Leahy (D-Vt.). “This hiding things but taking out things selectively — it doesn’t pass the giggle test.”

At the start of the Senate trial, Democrats had offered two separate amendments to the rules package that might have limited the defense’s ability to use the disputed documents. One dictated that if Trump’s lawyers referenced one of the undisclosed documents, they would have to release the subpoenaed document tranche in its entirety.

"The [rules] resolution would allow the president to cherry-pick documents he has refused to produce to the House and attempt to admit them into evidence here,” said Rep. Adam SchiffAdam Bennett SchiffMask rules spark political games and a nasty environment in the House CIA says 'Havana syndrome' unlikely a result of 'worldwide campaign' by foreign power The Hill's Morning Report - Biden to make voting rights play in Atlanta MORE (D-Calif.), the lead impeachment manager, endorsing the change. “That would enable the president to use his obstruction not only as a shield to his misconduct but also as a sword in his defense.”

The other Democratic amendment would have empowered Chief Justice John Roberts, who is presiding over the Senate trial, to authorize new documents or witnesses under subpoena requests.

Both amendments failed on party-line votes, sparking plenty of Democratic concerns that Trump’s lawyers now have free rein to lean on documents only the White House knows exist.

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“I am not sure that would be illegal — I am not enough of a lawyer to know that,” said Sen. Mark WarnerMark Robert WarnerThe Hill's Morning Report - Biden: Russia attack 'would change the world' SALT change likely to be cut from bill, say Senate Democrats New Mexico Democrat tests positive for COVID-19 breakthrough case MORE (D-Va.). “It would be unfair.”

Yet Trump’s Republican allies have a different view. They’ve long argued that Trump was denied a fair trial during the House investigation. With that in mind, they appear unbothered by the thought that Trump’s team would have an advantage in the Senate trial.

“The way I look at fairness is: Is it fair to the House that went through the entire impeachment process without giving the president's team a chance to rebut the information?” asked Sen. Tim ScottTimothy (Tim) Eugene ScottClyburn predicts Supreme Court contender J. Michelle Childs would get GOP votes Sen. Tim Scott rakes in nearly million in fourth quarter These Senate seats are up for election in 2022 MORE (R-S.C.). “So if the president wants to bring information to the table, I think it creates an equilibrium, at least in my head.”

But while Republicans have hammered the point that the White House did not have the chance to respond to Democrats’ charges during the House impeachment inquiry, they fail to note that the White House declined to participate in the hearings.

Trump’s House GOP allies had warned the White House against participating in the investigation, saying it would legitimize a process they had repeatedly attacked as illegitimate.

Since that investigation, new evidence has emerged related to Trump’s dealings with Ukraine, putting additional pressure on Republican leaders to consider the new information during the Senate trial — an option they’ve been loathe to consider.

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It’s an argument the Democratic impeachment managers are driving home — while they still have the chamber floor.

“Recent court-ordered releases under the Freedom of Information Act, as well as disclosures to the media, have further demonstrated that the White House, [Office of Management and Budget], State Department and other agencies are actively withholding highly relevant documents that could further implicate the president and his subordinates,” Demings said Friday on the Senate floor.

“You should be hearing this evidence now.”

Jordain Carney contributed.