Trump, Hunter Biden have flimsy defenses in common

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Former President Donald Trump and Hunter Biden, son of President Joe Biden, have little in common, but their criminal cases share certain features. Both have retained high-priced defense attorneys praised for their acumen and prowess.

Trump's squadron of lawyers, including those for his election interference case in the nation's capital, have reportedly been paid more than $1 million each, some quite a lot more. The lawyer for the younger Biden in the newly filed income tax evasion charges and his other prior tax and gun possession case, Washington, D.C., power player Abbe Lowell, is not working pro bono, either.

Both legal teams have another commonality: They are asserting what seem to be wholly untenable defenses.

Trump's claim of immunity is grounded on the dubious assertion that he cannot be prosecuted for any conduct he undertook while in office. It eerily tracks the remark by disgraced President Richard Nixon, rebuffing objections to his unlawful conduct with the explanation that "when the president does it, that means it's not illegal."

Trump's costly defense rests on the Nixonian proposition that he has "absolute" immunity from legal prosecution because he was carrying out his constitutional duties when he tried to subvert the result of the 2020 election and unleashed his mob of Jan. 6 insurrectionists on the nation's Capitol.

In short, if a president were to assault someone visiting the Oval Office for a briefing or while at a state dinner for a foreign dignitary, the immunity defense would probably apply. But it wouldn't protect a president who, say, carelessly struck someone with an errant golf ball.

Further, the presidential immunity doctrine has only been applied in civil litigation, not in any criminal case. That makes this one what lawyers and judges call "a case of first impression."

Last week special prosecutor Jack Smith made a preemptive strike, asking the Supreme Court to decide before trial whether the immunity claim has merit. In a rarity, the justices seem inclined to do so, requesting expedited briefing this week on the issue, prompting the D.C. trial judge, Tanya Chutkan, to postpone the trial that had been scheduled for the first week in March.

While the case simmers, perplexed onlookers fear that acceptance of Trump's Nixonian argument by the high court would deal a stunning blow to Smith's prosecution and expand the Constitution to countenance criminality. It's an extension of what candidate Trump famously boasted during the 2016 campaign: that he "could shoot someone" on Fifth Avenue without recourse.

Taken to its logical end, Trump need not have provoked a riot; he could simply have shot Joe Biden.

Meanwhile, the ex-president may have a more meritorious defense to other charges he's facing in the nation's capital (apart from the three other criminal cases pending against him elsewhere).

Another charge in the D.C. case against the former president is for conduct that seeks to "corruptly obstruct" an official proceeding, a charge that yielded convictions of a number of Jan. 6 rioters. The Supreme Court will soon be hearing an appeal by some of them, questioning whether that proscription applies to their conduct in trying to prevent the ceremonial tally and announcement by the vice president of the electoral vote count for president.

Many observers feel that the justices, who tend to construe criminal laws narrowly, will deem the law passed to combat corporate corruption spurred by the Enron scandal two decades ago inapplicable to the Jan. 6 rioters. If so, it may not cover the former president's conduct, either.

Thus, there's a reasonable possibility that none or only some of the Jan. 6-related charges against Trump might still be standing after the high court finishes with them.

Meanwhile, the high-powered defense attorney for Hunter Biden has trotted out his shopworn explanation that his client should not be prosecuted for three years of nonpayment of income taxes and one year of false filing because he was in a prolonged state of intoxication. He was too drunk, or stoned, to pay his taxes.

It's a form of exculpation that has been uniformly rejected in numerous cases, and this may be the first time a lawyer has used drunkenness as a defense to tax charges.

Neither the presidential immunity nor drunkenness defenses raised by these high-profile defendants and their high-priced lawyers is likely to prevail. But both provide fodder for faithful followers.