If the basis of convicting former President Donald Trump in this week’s Senate impeachment trial is that his rally speech on Jan. 6 encouraged and incited the violence at the Capitol, then he might have a very simple defense — it didn’t, according to a top Washington lawyer.
And for proof, all Trump’s lawyers have to do is bring forward key law enforcement officials and have them testify that they saw and heard no signals of the coming violence during and after the speech given to a crowd near the White House.
Or, as George Washington University law professor John Banzhaf said, “The dog didn’t bark.”
In a memo today, he noted that the prosecution has suggested a “likelihood” of violence sparked by Trump’s speech. But, he added, there has been no evidence revealed by the police that the speech prompted any talk or internet chatter of the type of violence that followed and which many reports have said was planned long before Trump’s speech.
“That, of course, is a vital part of the legal standard since, if there wasn’t a clear likelihood of violence at the time he spoke, his words — no matter how incendiary — would be protected by the First Amendment, even if they did, in fact, lead to violence, and even if the rioters believed, perhaps mistakenly, that Trump had commanded them to commit violence in his name,” said Banzhaf.
“Regardless of what initial evidence, e.g., internet ‘chatter,’ of possible violence at the Capitol may or may not have existed before Trump spoke, it appears that, like the famous Sherlock Holmes story in which a dog did not bark when he would have been expected to, law enforcement authorities apparently did not ‘bark,’ or otherwise warn about any likelihood of violence, during or immediately following his speech,” he added.
In Tuesday’s opening of the Senate session, Democrats played a video that artfully implied the Capitol attackers reacted to Trump’s dog whistle.
But the professor said that’s not enough because law enforcement didn’t see any reaction and did little to reinforce the Capitol.
“So, if law enforcement officials, trained to assess threats and the likelihood of violence, did not send out new warnings of imminent violence immediately following Trump’s speech, especially in light of ‘chatter’ and other warnings beforehand, it could be very persuasive evidence that, despite whatever words and phrases Trump used, they did not create a likelihood of violence to those in the best position to assess it at the time,” wrote Banzhaf.
Proving that would simply require police in charge at the time to testify.
“Trump’s defense team might call, as witnesses, those law enforcement authorities, and ask them to explain why, if there was a significant likelihood of imminent violence growing out of Trump’s speech, they apparently issued no new alerts,” he suggested.
And he parsed the legal requirement of a “likelihood” of violence, which law enforcement apparently didn’t see during Trump’s speech.
“In other words, even if evidence shows that Trump’s statements did, in fact, cause a riot which subsequently occurred, and even if the evidence shows that he did have an intent to cause the violence, the legal requirement that ‘there [was] LIKELIHOOD that such violence will ensue’ at the time he spoke is separate and distinct, and is susceptible of being disproved by the lack of warnings issued at the time — similar to the dog which didn’t bark,” said Banzhaf.
