When East Bay Rep. Eric Swalwell filed a lawsuit Friday against Donald Trump and several of the former president’s allies over the storming of the U.S. Capitol, Republican rivals instantly dismissed the Dublin Democrat’s ploy as a publicity stunt.
But could the former Alameda County prosecutor prevail?
Some experts have suggested the suit could be stymied by free speech protections and that Trump might be able to claim immunity since he was still the sitting president when the violence occurred. But that hasn’t stopped Swalwell’s quest to hold Trump accountable for the insurrection after the Senate last month failed to convict him following his January impeachment in the House of Representatives.
“It’s good politics,” said Jessica Levinson, a professor at Loyola Law School. “I don’t think it’s any secret that Eric Swalwell has been out in front of this for a long time. People on both sides of the aisle use lawsuits to provide legitimacy to their political arguments, but I don’t think that’s purely what this is…I don’t think it’s frivolous.”
Swalwell, who launched a short-lived long-shot presidential run in 2019, also names Donald Trump Jr., Trump adviser Rudy Giuliani, and Congressman Mo Brooks — who told rioters, “Today is the day American patriots start taking down names and kicking ass” — in addition to the former president in the suit, accusing them of inciting the riot and inflicting distress on members of Congress, who blockaded themselves in conference rooms and offices for hours as an angry mob tore through the Capitol complex.
Swalwell has said he feared for his life that day, preparing himself to fight and texting his wife that he loved her and their children.
Pointing to social media posts and other commentary, the suit, which seeks unspecified damages and demands a jury trial, accuses the men of negligence and suggests that “the horrific events of January 6 were a direct and foreseeable consequence of the defendants’ unlawful actions. As such, the defendants are responsible for the injury and destruction that followed.”
In a tweet, Brooks called the suit a “meritless ploy.” Trump Jr. retweeted a tweet calling it “a stunt,” and a Trump spokesman has said the suit has no credibility. Giuliani could not be reached for comment.
Filing the suit, Levinson said, could lead to what’s known as discovery in the legal world — a process that could bring new emails, text messages or other damning information from depositions under oath to light.
And, noted Claremont McKenna College politics professor Jack Pitney, the suit gives Swalwell a chance to keep the insurrection — and himself — in the limelight.
“It’s a way of keeping the story in the present tense,” Pitney said, adding that while hardcore Trump supporters aren’t going to waver in their support, Democrats could use whatever news the suit turns up to hammer Republicans heading into the midterms. “Within the Democratic Party, there really isn’t much of a downside to suing Trump.”
Swalwell isn’t the only Bay Area lawmaker focused on the events at the Capitol in January. South Bay Rep. Zoe Lofgren recently published a log of what she considers inappropriate social media activity from her Republican colleagues, which she suggested could potentially be used to remove or punish members who contributed to the violence.
“Statements which are readily available in the public arena may be part of any consideration of Congress’ constitutional prerogatives and responsibilities,” the San Jose Democrat wrote in foreword to the report, which calls out California Republican Reps. Darrell Issa, Doug LaMalfa, Kevin McCarthy and Devin Nunes for, among other things, suggesting Joe Biden’s victory was stolen or somehow fraudulent — claims that are not supported by actual evidence. It’s not yet clear how the report will be used.
And Swalwell isn’t the first to sue Trump over the events of Jan. 6. Mississippi Democratic Rep. Bennie Thompson filed a lawsuit last month alleging in part that Trump is to blame for the insurrection.
Swalwell and Lofgren both declined to be interviewed.
Levinson said it’s “upsetting” that Republicans who voted to acquit Trump in January by saying they opposed his actions but didn’t think the impeachment trial was the best venue for holding him accountable haven’t stepped forward to join litigation — suggesting a bipartisan legal push would have more “heft” than a purely Democratic operation.
So far there is no indication that Republicans will join any effort to hold Trump accountable through the court system. And if Swalwell’s attorneys want his lawsuit to succeed, they’ll need to overcome a few other hurdles, said UC Hastings College of the Law professor David Levine. Trump’s team will almost certainly argue that because he was president at the time, he is protected by presidential immunity. Swalwell’s team, Levine said, will need to show essentially that he acted outside the scope of the presidency.
“Trump could hold that up for a long time,” Levine said. But, he added, referring to an expression from Don Quixote about battling imaginary enemies, “It’s far from crazy to do this…It’s a far stronger case than, let’s say, tilting at windmills.”
