I have long respected Sen. Chris Coons (D, Del.) as a highly intelligent and effective senator. I was surprised today to be watching Michael Smercomish (who I also respect greatly) to hear Sen. Coons following the party line in arguing implausibly that Hunter Biden is not a relevant witness in any trial despite his centrality to the Trump defense. I previously addressed how Biden would be deemed relevant in a conventional trial and Smercomish quoted one of my Washington Post column at length to offer the opposing view. Sen. Coons responded not by addressing the relevancy argument but by dismissing such arguments as clever lawyering and “a stretch . . . a leap of logic worthy of Evel Knievel.” I should note that this analogy was lost on my youngest son, Aidan, who immediately asked “who is Evel Knievel?” When I explained, he responded, “isn’t that a good comparison?”
No, it was not meant to be a positive comparison. Putting aside that he broke every bone in his body, Sen. Coons was trying to say that I was leaping over logic and law to reach this conclusion. On the eve of the Martin Luther King Day, I can only paraphrase that “He who passively accepts [Evel] is as much involved in it as he who helps to perpetrate it.” The truly impressive Knievel-like leap is to call your witnesses and then vault over the witnesses requested by the defense.
The position of the Democrats seem to take the position that only prosecution theory witnesses are relevant — in other words, their witnesses. There are defense witnesses allowed under the federal rules who are called to support alibis or defense theories.
As I previously noted, under Federal Rule of Evidence 401, courts will often review possible testimony under the standard of whether “it has a tendency to make a fact more or less probable than it would be without the evidence.” Even before the adoption of the Bill of Rights, Congress enacted a statute reaffirming the right of the “defense to make any proof that he can produce by lawful witnesses” in cases of treason and capitol cases. This right to present a defense has been repeatedly reaffirmed by the Supreme Court including in the 1967 opinion in Washington v. Texas, where the Court ruled that “the right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present the defense, the right to present the defendant’s version of the facts . . . Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.”
What is curious is that, if the Democrats are successful in calling the witnesses that they want at trial, it is inevitable that the White House will be allowed its own witnesses. Why not take the high road and maintain a consistent, coherent position that each side will be allowed such witnesses? Instead, Coons and others struggle to explain why witnesses wanted by the House are essential but those wanted by the White House are mere “distractions.”
Sen. Coons is too smart not to see the hypocrisy in that position. Besides, the last thing any of us want to see . . . is me in a skin tight, Knievel bodysuit.