The Flimsy Criminal Defenses Of America's Most Elite Defendants

By Marshall H. Tanick, Minnesota Reformer

December 20, 2023

Former President Trump and Hunter Biden have little in common, except their postures as defendants facing multiple federal felony criminal charges.

They are foisting wholly untenable defenses bordering on the preposterous. They wouldn’t stand up for a proverbial New York minute if proffered here in Minnesota by team Trump or by the younger Biden and not very much longer in Washington, D. C., and Delaware, respectively, where their cases are pending.

For the former president, it’s his claim of immunity, grounded on the dubious proposition that he cannot be prosecuted for any conduct he undertook while carrying out his duties as president.

If that sounds rather Nixonian, it’s because it is. A few years after resigning in the face of imminent impeachment and removal from office, in an eerily similar vein, he brushed away any objections to his unlawful conduct. As he explained to interviewer David Frost: “When the president does it, that means it’s not illegal.”

But, it is.

Ex-President Trump’s pricey defense — his attorneys are reportedly making $1 million and more each — rests on the proposition that he was carrying out his constitutional duties when he tried to subvert the result of the 2020 election and unleashed his mob of January 6th insurrectionists on the Capitol.

If accepted, that would impermissibly expand the U.S. Constitution to countenance criminality.

It’s an extension of what, in the 2016 campaign, the president-to-be famously stated that he “could stand in the middle of Fifth Avenue and shoot somebody,” without recourse from his loyalists.

But if that premise were recognized, he need not have provoked a riot; he could have just shot Joe Biden.

Despite its drawbacks, raising the the immunity issue offers one advantage. In the federal system — as in Minnesota — the denial of an immunity defense before trial is one of the rare claims that generally is immediately appealable, rather than waiting until the end of the trial.

And delay is a major feature of the ex-president’s strategy. But the D. C. trial and appellate courts have indicated they will not countenance delay beyond the scheduled March 4th start of his trial, a day before the Super Tuesday presidential primaries in Minnesota and a bevy of other states.

But Special Counsel Jack Smith prosecuting the ex-president and five alleged co-conspirators made an unusual preemptive strike to avert the possibility of a prolonged delay of the case. Smith brought a proceeding before the U. S. Supreme Court asking the justices to bypass the normal drawn-out appellate procedure, asking the court to issue an expedited ruling on the immunity defense, hoping to have it stricken from the case so that it may proceed with alacrity.

It remains to be seen if — and when — the high court will exercise its discretion to intervene and how it will decide the matter. But current scheduling protocols prevent the justices from making a decision whether to hear the case until at least the first week of January, at which time four of the nine members of the tribunal would need to agree to hear it sometime in the first part of 2024.

Drunken defense

As for the current president’s son, his high-powered defense attorney Abbe Lowell has trotted out his shop-worn explanation that his client should not be prosecuted for years of non-payment of income taxes because he was in a prolonged state of intoxication; in other words, he was too drunk to pay his taxes.

It takes almost as much chutzpah as raising drunkenness as a defense in a driving while intoxicated charge: “My client was too drunk to be charged with drunk driving.” It’s a form of exculpation that has been uniformly rejected in numerous cases, including one here in Minnesota, State v. Atha, 15 years ago.

In raising it anew, as his father’s Democratic predecessor, President Barack Obama, might tell the younger Biden’s attorney: “C’mon, man.”

This may be the first time that a lawyer has used drunkenness as a defense to tax charges. If it works, consider the marketing potential for the alcohol companies: We’ll get you drunk — and then you can ignore your taxes.

Neither of these defenses is likely to get very far. But they provide fodder for their faithful followers.

The former president and the current one’s son may have high-priced and astute legal defense teams. But their lawyers would have trouble passing a bar examination with these criminal defenses.

The Minnesota Reformer is an independent, nonprofit news organization dedicated to keeping Minnesotans informed and unearthing stories other outlets can’t or won’t tell..