Irv Miller: Trump's claim of political prosecution is not a legal defense
CHICAGO (CBS) -- Former President Donald Trump pleaded not guilty Thursday to charges that he tried to overturn the 2020 election.
A federal grand jury hearing evidence in special counsel Jack Smith's investigation approved a historic indictment on Tuesday charging Trump with four felony counts: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
The 45-page charging document accuses Trump and six co-conspirators of pursuing several schemes to block the transfer of power to Joe Biden after Trump lost the 2020 election, culminating in the Jan. 6 attack on the Capitol. The indictment alleges Trump knew his claims of widespread voter fraud were false but "repeated and widely disseminated them anyway — to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election."
Trump has denounced Smith's probe as politically motivated and denies any wrongdoing. CBS 2 Legal Analyst Irv Miller said Thursday that such protests do not amount to a legal defense.
"It's a very sad thing to see it. When you look at what's happening, this is a persecution of a political opponent. This was never supposed to happen in America. This is a person that's leading by very, very substantial numbers in the Republican primary, and leading Biden by a lot. So if you can't beat him, you persecute him, or you prosecute him," Trump said. "We can't let this happen in America."
Miller said Thursday that the defense's strategy of deeming the prosecution political will not fly from a legal standpoint.
"They're trying to formulate a defense, but unfortunately for them, it's not a legal defense. You can't go in front of a jury and say, 'This is a political trial.' It's not going to work. The judge isn't going to instruct the jury that that's a legitimate defense. So there's not going to be a 'not guilty' form for that particular defense," Miller said. "What they're trying to do is say eventually to the jury, who are listening to this right now – the jurors: 'You can avoid the facts. You can avoid the law. You're the juror. You can do whatever you want to do.'"
A defense on First Amendment grounds that Trump was simply listening to his advisers will also run into problems, Miller said.
"Well, that is what they're saying, but the problem is they're acts in furtherance of these conspiracies," he said. "It's one thing to talk to somebody and just have a conversation. It's another thing to plan out election interference, or plan out getting fake electors. That's going beyond First Amendment speech. That's going toward fraud and a conspiracy."
It also remains an open question whether U.S. District Judge Tanya Chutkan will allow for the relitigation of numerous aspects of the events that led up to the Jan. 6 Capitol insurrection.
"You don't know what the judge's strategy is. This judge is going to go up there and try to figure out, 'Am I going to get into a lot of stuff, or am I going to confine the evidence to just the four corners of the indictment,'" Miller said. "It'll be interesting to see what she does at the time of the trial, when the prosecutor starts objecting to some of these things – whether or not she sustains the election, or says, 'Overruled.'"
Meanwhile, Miller noted that an arraignment is a routine, procedural hearing in which a defendant offers a plea. But he also noted that Mr. Trump saw something he didn't like when he sat down with his attorneys – which was likely something regarding the conditions of his bond.
"There's always paperwork that the defendant has to sign during the proceedings – typically, what are the conditions of his bond?" Miller said "And apparently from my perspective, there was something in there that he didn't like – and he had what I heard was a heated conversation with one of his lawyers. So there must have been some condition there that he didn't want to agree to."
Trump is also facing indictments in two other separate cases. In June, he was indicted on federal charges of mishandling classified documents at his Mar-a-Lago estate in Florida. He is also facing 34 counts in New York state court stemming from a hush-money payment made to an adult film star before the 2016 election.
CBS 2's Jim Williams asked Miller how those three separate and unrelated cases would likely be scheduled.
"I wouldn't be surprised if the judges that were involved in this in the three separate places actually had a conference call – they can talk. You can't talk about substantive things. You can't have ex-party conversations," Miller said. "But scheduling is one thing you can discuss with other judges, and lawyers, among themselves – and even defendants."
Miller also said while prosecutor Smith wants a speedy trial, the process in the latest case will not be fast.
"It's not going to go away quickly. I know the prosecutor said that he wanted a speedy trial. But a speedy trial is a defendant's right, not a prosecutor's right," Miller said. "So when they say speedy, you have to think about what that word really means."
Trump's next hearing in the latest case is set for Aug. 28 – but he does not have to appear personally. The next several hearings will be status hearings – dealing with issues such as turning over documents, any disputes about the conditions of bond, and other such matters.
"Substantively, the trial will be way down the road – probably 10 continuances from now," Miller said. "I think it's going to be after the election."
While the judge sets the trial date unilaterally, Miller said the time the defense needs to prepare must be taken into consideration.
"One thing you have to remember – you don't want to have a trial where the defense is not prepared and there's a conviction," Miller said. "Goes up to the appellate court, and it's reversed because you violated the defendant's rights by going too quickly."
Miller said between a conspiracy charge and unindicted co-conspirators, the case will take "forever."
