Heather Walsh, an OMB lawyer, wrote that of the 111 redacted emails in the lawsuit, 24 are protected by “presidential privilege.”
“Specifically, the documents in this category are emails that reflect communications by either the President, the Vice President, or the President’s immediate advisors regarding Presidential decision-making about the scope, duration, and purpose of the hold on military assistance to Ukraine,” Walsh wrote.
Democrats spent much of the Senate impeachment trial imploring GOP senators to allow new evidence in the case against Trump.
In the weeks since the December House vote to impeach the president, new evidence against him has emerged, including reports that former White House national security adviser John Bolton says there was a quid pro quo conditioning the aid on investigations by Ukraine that could help the president politically.
Trump and administration officials repeatedly stonewalled the House impeachment probe, refusing to allow some witnesses to testify and to provide requested documents.
Ultimately Democrats could persuade only two Republicans that more evidence was needed. On Friday, the Senate voted 51 to 49 to block new witnesses and documents, clearing the way for Trump’s acquittal this week.
Democrats are likely to seize on the new court filing as proof that the trial was incomplete and thus invalid.
“Every single Republican Senator voted to endorse the White House coverup of these potentially important truth-revealing emails,” Minority Leader Charles E. Schumer (D-N.Y.) said in a statement Saturday. (GOP Sens. Susan Collins of Maine and Mitt Romney of Utah voted with Democrats to subpoena Bolton but against admitting new documents.) “Make no mistake, the full truth will eventually come out and Republicans will have to answer for why they were so determined to enable the president to hide it.”
A spokesman for Majority Leader Mitch McConnell (R-Ky.) declined to comment.
Heavily blacked-out versions of the emails in question were released in two batches in December in response to a lawsuit filed by the Center for Public Integrity after the administration ignored a Freedom of Information Act request for the materials.
The government’s filing Friday asked the court to deny the organization’s request for unredacted copies.
The earliest correspondence labeled as protected presidential privilege is from June 24, 2019, between Pentagon officials and has the subject line: “POTUS follow up.”
The crux of the impeachment case against Trump is whether he used the $391 million in military aid, and a coveted White House meeting for Ukrainian President Volodymyr Zelensky, as leverage to force the foreign leader to conduct political investigations, including one focused on former vice president Joe Biden.
In a July 25 call, Trump had asked Zelensky to “do us a favor.”
Why Trump wanted Congress-approved assistance to Ukraine delayed is the central question of his impeachment and was a major point of tension in the Senate trial.
On Wednesday, Romney asked Trump lawyer Patrick Philbin on what specific date Trump first ordered the hold on military aid to Ukraine and what reason he gave.
Philbin couldn’t answer. “I don’t think there is evidence in the record of a specific date,” he said.
Referencing the June 24 email, Philbin said the president had been asking since late June about how much other countries spent supporting Ukraine and had raised concerns about corruption later in the summer — the issues the White House has claimed were the impetus for the hold.
“So the evidence in the record shows that the president raised concerns, at least as of June 24th, that people were aware of the hold as of July 3rd,” Philbin said.
Many of the witnesses who testified in the House, some defying the White House’s orders, said they were never given an official reason for the hold.
During his Oct. 22 deposition, William B. Taylor Jr., the acting U.S. ambassador to Ukraine, recalled that he first learned of the hold on a July 18 conference call, when an OMB aide said the security assistance was being held but couldn’t say why.
“All that the OMB staff person said was that the directive had come from the president to the chief of staff to OMB,” Taylor said. “In an instant, I realized that one of the key pillars of our strong support for Ukraine was threatened.”
Several days after that conference call, on July 25, Trump spoke to Zelensky. Two hours later, a senior official at OMB, Michael Duffey, sent an email to Pentagon officials directing the hold on military aid and asking them to keep it quiet.
House Democratic managers prosecuting the case against Trump argued throughout the Senate trial that there was sufficient evidence to conclude that the president was using the money as leverage to pressure the Ukrainian government to launch a public investigation into Biden and his son Hunter.
But White House lawyers contended that Democrats could not prove motive and suggested it was possible that Trump had mixed motives in placing a hold on the aid, both personal and in the public interest.
The House managers said that was why they wanted the Senate to subpoena additional documents and witnesses with firsthand knowledge of the president’s thinking, such as acting chief of staff Mick Mulvaney and former national security adviser Bolton.
Rep. Adam B. Schiff (D-Calif.), who led the prosecution, warned Friday that the contents of such emails will eventually be public.
“The facts will come out in all of their horror,” Schiff said in his closing remarks. “The documents the president is hiding will come out. The witnesses the president is concealing will tell their stories. And we will be asked why we didn’t want to hear that information when we had the chance.”