French philosopher Voltaire said he had one prayer in life to “make my enemies ridiculous” and that it was granted by God. The answer to the prayers of Donald Trump may be Representative Eric Swalwell. It is not because of the relationship that Swalwell had with a Chinese agent or because of the bizarre defenses of him like from someone insisting he deserved a medal of honor. It is because his lawsuit against the former president may offer Trump vindication in the riot at the Capitol.
The complaint against Trump along with Rudy Giuiani and others alleges nine counts for relief, from the emotional distress suffered by Swalwell to negligence in the “incitement to riot.” One might believe this would be a lead pipe cinch of a case. After all, various legal experts have insisted for months that this was clear criminal incitement rather than an exercise of free speech. As a civil lawsuit, this would be even easier to win, since the standard of evidence is lower in civil cases. Yet for over four years, many of these same experts claimed an incredible list of crimes by Trump that were never prosecuted or used as a basis for his impeachment.
Despite similar claims for criminal incitement, around three months have passed without any charges against Trump. District of Columbia Attorney General Karl Racine had insisted weeks ago that the allegations would be investigated. But any such prosecution would likely collapse at trial or on appeal, and people like Racine are simply not eager to prove this case by reversal. Enter Swalwell, who exhibits a readiness to rush in where wiser Democrats fear to tread, and what may be his costliest mistake.
First, his lawsuit will force a federal judge to determine if the speech of the defendants were protected political speech. As if to ensure failure, Swalwell picked the tort of emotional distress that was rejected by the Supreme Court, which a decade ago ruled in favor of Westboro Baptist Church, the infamous group of zealots who participate in homophobic protests during the funerals of slain soldiers and other events.
In rejecting the lawsuit over constitutional grounds, Chief Justice John Roberts wrote, “Speech is powerful. It can stir people to actions, move them to tears of joy and sorrow, and as it did here, inflict great pain. On the facts before us we must not react to that by punishing the speaker.” Roberts distinguished our country from hateful figures, noting that “we have chosen a different course to protect even such hurtful speech on public issues to ensure that we do not stifle the public debate.”
Second, Swalwell has to show that Trump was the cause for his claimed injuries. He and others have argued that, if not for Trump, the riot would not have occurred. But a trial will allow the defense to cite “superseding intervening forces” on that issue, which are defined as actions of others that could have caused or contributed to the riot at the Capitol.
Such blame would have been easier to make before the House refused to hold hearings on the second impeachment of Trump. But there are facts that blame Congress itself in the failure to take the sufficient precautions despite advance warning. Former House officials claimed a warning from the Federal Bureau of Investigation was sent in an email a day before the riot, but the director testified that a warning of plans to storm the Capitol was sent on all the channels for sharing the critical intelligence.
Former Capitol Police Chief Steven Sund also testified that he had asked for National Guard support but was refused six times. He said one official did not like the “optics” of military members on the grounds of Congress. Some delays with the Capitol and the Pentagon allegedly left the Capitol understaffed. Former Acting Defense Secretary Chris Miller also claimed Trump told him a day before the riot to “do what you need to do.”
There also is a problem with the timeline. The complaint alleges a failure by Trump to act as violence unfolded. But as more information has been released, the timeline comes down to minutes. Trump ended his speech at 1:10 p.m. The first rioter entered the Capitol at 2:10 p.m. Ten minutes later, Trump had a call with House Minority Leader Kevin McCarthy, who told him of the breach. Then Trump mistakenly called Senator Mike Lee instead of Senator Tommy Tuberville. Trump finally told the crowd to be peaceful and to support the police presence at about 2:40 p.m.
Many people believe Trump should have spoken earlier. I condemned his remarks while he was giving them. Yet numerous officials took actions or failed to that left the Capitol vulnerable. A comparison could be drawn to the violence around the White House last summer. Fearing the breach of that complex, overwhelming force was used to create a greater security perimeter. However, the use of the National Guard was then denounced by Democrats, the mayor, and the media during the aftermath.
The lawsuit also accuses Trump of reckless rhetoric but Swalwell may find himself on the witness stand having to answer for his own. The comments include his mocking threats against Senator Susan Collins. Swalwell, who claims severe emotional trauma from the riot at the Capitol, tweeted “boo hoo hoo” when angry protesters had circled her house in 2018.
The complaint is timed beautifully to collapse on appeal right before the 2024 election, giving Trump and Republicans the ultimate repudiation of prior claims from Democrats. Voltaire also famously said, “If God did not exist then it would be necessary to invent him.” Luckily for Trump today, Swalwell does exist and could well be the answer to his prayers.
Jonathan Turley is the Shapiro Professor of Public Interest Law with George Washington University and served as the last lead counsel during a Senate impeachment trial. He was called by House Republicans to be a witness in the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.