Below is my column in The Hill newspaper on Rep. Eric Swalwell’s complaint against former President Donald Trump. Swalwell has just filed a complaint that may prove to be a justification Trump has long sought over the January 6th Capitol riot.
Here is the column.
The French philosopher Voltaire said he had only one prayer in life – “O Lord, ridicule my enemies” – and it was uniformly granted by God. The answer to Donald Trump’s prayers could be Rep. Eric Swalwell, D-Calif. It’s not because of Swalwell’s relationship with any Chinese agent or his bizarre defense, including a Democrat who insists he deserves the Medal of Honor. This is because Swalwell’s lawsuit against former President Trump could provide the ultimate justification for his role in the January 6 riot on Capitol Hill.
Swalwell’s 64-page complaint against Trump – along with son Donald Jr., Rudy Giuliani, and Rep. Mo Brooks (R-Ala.) – claims nine points of relief, from negligent emotional distress Swalwell has endured to negligence in ” Inciting rioting. “You’d think this would be a piece of cake. After all, a number of legal experts have insisted for months that this is clearly criminal incitement and not an exercise of freedom of speech. As a civil action, it should be even easier to win as the Evidence standard for civil cases is lower.
Yet for more than four years, many of these experts maintained a long list of “outright” crimes committed by Trump that were never prosecuted or used as a basis for impeachment. Likewise, despite similar allegations of criminal incitement, approximately three months have passed without a criminal charge being brought against Trump. District of Columbia Attorney General Karl Racine insisted weeks ago that Trump’s alleged crime be investigated. However, such a prosecution would likely break down in court or on appeal, and people like Racine are not anxious to prove Trump’s case.
Enter Swalwell, who has long shown a willingness to rush where smarter Democrats are afraid to step, in what is perhaps the costliest misstep he has ever made.
First, his lawsuit will force a court to determine whether the defendants’ speeches were a protected political speech. As if to guarantee failure, Swalwell chose the very wrong – emotional distress – previously denied by the Supreme Court. In 2011 the court ruled 8: 1 in favor of Westboro Baptist Church, a notorious group of zealots who made homophobic protests against the funerals of murdered American troops. When Chief Justice John Roberts dismissed a lawsuit against the Church on constitutional grounds, he wrote: “The speech is powerful. It can inspire people to act, move them to tears of joy and suffering, and – as here – cause great pain. According to the facts at hand, we cannot respond to this pain by punishing the speaker. “Roberts distinguished our country from hateful personalities like the Westboro Group, noting that” we as a nation have taken a different course – to protect self-injurious speeches on public issues, to make sure we don’t suppress public debate. “
Second, Swalwell must prove that Trump was the factual and legal cause of his alleged violations. Swalwell and others have specifically argued that the uprising would not have happened without Trump. However, a process will allow the defense to offer “substitute intervention forces” on this issue – acts of others who may have led or contributed to the violation of the Capitol. A court could decide that Trump is not the “but for” cause of the uprising before legal causes or constitutional issues arise.
Pointing blame would have been easier before the House refused to hold hearings on Trump’s impeachment, even weeks after his “hasty impeachment.” Facts have now become known that cause Congress itself not to take adequate precautions against rioters, despite previous warnings. Former House officials claimed an FBI warning was sent in an email just the day before the riot – but FBI Director Christopher Wray has testified that a warning of plans to storm the Capitol was broadcast on all channels set up for the exchange of such information. In addition, former Capitol Police Chief Steven Sund said he had asked for National Guard assistance but was turned down six times. One key official, Sund said, didn’t like the “look” of the troops guarding Congress. Delays in both the Capitol and the Pentagon have reportedly understaffed the Capitol. And Trump was quoted by former Secretary of Defense Chris Miller as warning him the day before the riot: “You do what you have to do. You do what you have to do. You will need 10,000 (troops). “
There is also a growing problem with the uprising timeline. Swalwell’s complaint alleges Trump failed to act as violence unfolded. With the release of more information, the time between the violation and Trump’s demand for law and order has been reduced to a few minutes. Trump finished his speech at 1:10 p.m. The first rioter entered the Capitol at 2:12 p.m. Eight minutes later, Trump had a violent phone call to House Minority Leader Kevin McCarthy (R-Calif.) Telling him about the injury. Then at 2:26 p.m. Trump mistakenly called Senator Mike Lee (R-Utah) instead of Senator Tommy Tuberville (R-Ala.). Lee allegedly said Trump failed to realize the extent of the unrest. Finally, at 2:38 p.m., Trump urged followers to be peaceful and support the police. That was about 30 minutes after the first protester entered the Capitol. Trump’s defense team is likely to point out that not only did he tell supporters to go “peacefully” to the Capitol, but also called for the prosecution to be obeyed about 30 minutes after the first rioters entered the Capitol.
Many people think Trump should have spoken sooner. In fact, I condemned his speech as he made it. Nonetheless, various people took (or failed to take) action that made the Capitol vulnerable. And in the process a comparison could be drawn with the violence in the White House last summer: Fears of a violation of this complex, overwhelming violence were used to create an expanded security area – but the use of National Guard troops was then denounced by Congress Democrats , the Mayor of DC and the media.
Ultimately, Swalwell’s complaint accuses Trump of reckless rhetoric – but Swalwell could be on the witness stand and have to answer for his own rhetoric. Those comments include his mockery of threats against Senator Susan Collins (R-Maine). Swalwell, who now claims severe emotional trauma from the Capitol uprising, tweeted dismissively “Boo hoo hoo” when angry protesters surrounded Collins’ house in 2018.
Swalwell’s grievance comes at just the right time to collapse on appeal just before the 2024 elections, allowing Trump and Republicans to finally reject previous Democratic claims. Voltaire also famously said: “If God did not exist, it would be necessary to invent him.” Fortunately for Trump, not only does Swalwell already exist, but it could also be the answer to Trump’s political prayers.