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Trump's Impeachment Lawyers Could Use Sherlock Holmes' Defense
Could Be Best Hard Evidence That His Speech Did Not Make Violence Likely
While the former is a strictly legal argument, the second could be based on - or at least bolstered by - real evidence of the type used by Sir Arthur Conan Doyle's famous detective Sherlock Holmes, suggests public interest law professor John Banzhaf.
Since it is clear that Trump did use inflammatory language, and that violence occurred shortly afterwards, what hard evidence can the defense team offer?
With all of the focus on whether his exact language called for violence, little attention has been paid to the additional requirement in any criminal charge of incitement which is imposed by the Constitution itself.
Under the famous Brandenburg decision any allegedly incendiary speech must "incite or provoke violence where there is a LIKELIHOOD that such violence will ensue" [emphasis added] to fall outside the protection of the First Amendment,
But there may be persuasive evidence that the required likelihood of violence did not exist at the time when Trump spoke - the legal test - regardless of what happened afterwards. says Banzhaf.
Regardless of what initial evidence 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 after his speech, or even after the rally at which Trump spoke finally broke up.
But it appears that the media did not report that Trump's speech triggered any sudden outpouring - a hue and cry of concern and worry - about violence at the Capitol to follow; indeed and specifically, that there were any such serious new warning messages sent to the Capitol police or anyone else who should have been warned if his words, at the time they were spoken (the legal test), created a "likelihood that such violence would occur."
So, if law enforcement officials did not send out new warnings of imminent violence immediately following Trump's speech, 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, says Prof. Banzhaf.