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

Democrats are sounding the alarm that President TrumpDonald John TrumpMinneapolis erupts for third night, as protests spread, Trump vows retaliation Stocks open mixed ahead of Trump briefing on China The island that can save America 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 HironoSenate Dems press DOJ over coronavirus safety precautions in juvenile detention centers Conservative group launches campaign accusing Democrats of hypocrisy on Kavanuagh, Biden Hillicon Valley: Commerce announces new Huawei restrictions | Russian meddling report round five | Google's ad business in spotlight 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."

ADVERTISEMENT

“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 BraunGOP faces internal conflicts on fifth coronavirus bill Hillicon Valley: Trump threatens Michigan, Nevada over mail-in voting | Officials call for broadband expansion during pandemic | Democrats call for investigation into Uber-Grubhub deal Republicans introduce bill to create legal 'safe harbor' for gig companies during the pandemic 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."

ADVERTISEMENT

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 DemingsMinneapolis erupts for third night, as protests spread, Trump vows retaliation Police killing in Minneapolis puts new scrutiny on Biden pick Cortez Masto says she's not interested in being Biden VP 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 SekulowAppeals court rejects Trump effort to throw out emoluments case Supreme Court divided over fight for Trump's financial records   Meadows joins White House in crisis mode 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 SchiffThe Hill's Morning Report - Presented by Facebook - George Floyd's death sparks protests, National Guard activation Hillicon Valley: Trump signs order targeting social media legal protections | House requests conference with Senate after FISA vote canceled | Minneapolis systems temporarily brought down by hackers House punts on FISA, votes to begin negotiations with Senate 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.

ADVERTISEMENT

“I am not sure that would be illegal — I am not enough of a lawyer to know that,” said Sen. Mark WarnerMark Robert WarnerSenate Democrats pump brakes on new stimulus checks Trump signs order targeting social media firms' legal protections On The Money: US tops 100,000 coronavirus deaths with no end in sight | How lawmaker ties helped shape Fed chairman's COVID-19 response | Tenants fear mass evictions 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 ScottMississippi mayor defends officers in George Floyd's death: 'If you can talk, you can breathe' The truth behind Biden's 'you ain't black' gaffe Senators ask DeVos to adjust FAFSA form due to the coronavirus pandemic 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.

ADVERTISEMENT

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.