Former House impeachment manager Eric Swalwell has sued former President Donald Trump, his son Donald Trump Jr., Rudy Giuliani and Republican Rep. Mo Brooks in a second major lawsuit seeking to hold Trump and his allies accountable for inciting the insurrection at the US Capitol on January 6.
The new lawsuit filed on Friday by Swalwell, a California Democrat who helped to lead impeachment arguments against Trump for inciting insurrection, follows a similar suit filed last month by Rep. Bennie Thompson against Trump, Giuliani, and the extremist groups the Oath Keepers and Proud Boys. Swalwell’s case makes some of the same claims as Thompson’s — citing a civil rights law meant to counter the Ku Klux Klan’s intimidation of elected officials.
But it also alleges Trump, Trump Jr., Giuliani and Brooks broke Washington, DC, laws, including an anti-terrorism act, by inciting the riot, and that they aided and abetted violent rioters and inflicted emotional distress on the members of Congress.
“The Defendants, in short, convinced the mob that something was occurring that — if actually true — might indeed justify violence, and then sent that mob to the Capitol with violence-laced calls for immediate action,” the lawsuit, in Washington, DC’s federal District Court, alleges.
The lawsuits will unfurl as Trump faces mounting pressures in investigations by House committees that seek his financial records, as well as in criminal probes related to his private business and his post-election actions. He has not been charged with any crime.
Friday, March 5, 2021’s suit could bump up against free speech protections for speakers at the rally, as well as immunity Trump could try to claim he had while serving as president. All of the elected officials in the lawsuit, including Trump, are named in their personal capacities in court, meaning they would use private lawyers and not be shielded by their public offices.
But should either this suit or Thompson’s proceed, it would mean the former President and his allies would be subject to discovery and depositions, potentially exposing details and evidence that weren’t released during the Senate impeachment trial.
Swalwell, who was locked down in the House chamber during the siege, claims Trump, Trump Jr., Giuliani and Brooks prompted the attack on Congress with their repeated public assertions of voter fraud, their encouragement that supporters come to DC on January 6, and in their speeches that day. Each man had told the crowd that Joe Biden’s electoral certification in Congress could be blocked, and that Trump’s supporters should fight, the lawsuit alleges.
“Trump directly incited the violence at the Capitol that followed and then watched approvingly as the building was overrun,” the lawsuit said. “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 Trump’s own speech just before the siege began, he told the crowd to “show strength” and “walk down Pennsylvania Avenue.”
Brooks, in his speech, had declared “Today is the day American patriots start taking down names and kicking ass,” then asked the rally attendees if they were willing to fight.
Giuliani during the January 6 rally said, “Let’s have trial by combat,” and the crowd responded with cheers.
Trump Jr. said that the crowd was a message to Republicans who weren’t fighting to overturn the election result.
“You can be a hero, or you can be a zero,” he said at the rally. “If you’re gonna be the zero, and not the hero, we’re coming for you, and we’re gonna have a good time doing it.”
The lawsuit attempts to connect the speeches directly to the crowd’s response.
“In what should have been a sign of how the crowd was receiving the Defendants’ claims and allegations, spontaneous chants of ‘Fight for Trump! Fight for Trump!’ rose up as Trump Jr. lambasted the alleged ‘glaring inconsistencies’ and ‘statistical impossibilities’ that allegedly had made President Biden’s win possible,” the lawsuit said.
Following the speeches at the pro-Trump rally, many in the crowd marched to the US Capitol, with several violently breaking into the building and looking for lawmakers who were certifying Biden’s victory over Trump in the 2020 election. Five people, including a US Capitol Police officer, died.
Last month, Jason Miller, a spokesman for Trump, distanced him from responsibility for the insurrection, in a response to Thompson’s lawsuit.
“President Trump has been acquitted in the Democrats’ latest Impeachment Witch Hunt, and the facts are irrefutable,” Miller said in a statement. “President Trump did not plan, produce or organize the Jan. 6th rally on the Ellipse. President Trump did not incite or conspire to incite any violence at the Capitol on Jan. 6th.”
In response to the new insurrection lawsuit, Miller attacked Swalwell personally in a statement over his pursuit of “yet another witch hunt.” Miller also called the two Trump impeachments “hoaxes.”
Brooks and Giuliani have taken similar positions.
Brooks has denied responsibility for the riot, telling a radio show host the day after the attack that he “absolutely” had no regrets. He later said in a statement, “No one at the rally interpreted my remarks to be anything other than what they were: A pep talk after the derriere-kicking conservatives suffered in the dismal 2020 elections.”
Giuliani, following the riot and speaking on his podcast, said “that the President had nothing to do with” it and has tried to claim, falsely, that left-wing groups were part of the siege.
Law enforcement, including FBI Director Chris Wray, have resoundingly rejected that claim, and court records have made clear many of the rioters were Trump supporters, with some taking part in right-wing paramilitary and extremist groups.
The new lawsuit and Thompson’s claims are likely to go hand-in-hand in DC’s federal trial court, potentially even before the same judge, Amit Mehta, who was appointed by Barack Obama. They may take months or even years to reach resolutions and proceed as the same federal court hears criminal cases against around 300 alleged rioters and other Trump supporters who came to Washington on January 6.
Swalwell, in his lawsuit, is seeking an order from the court that forces Trump and his three allies to give at least seven days notice before holding any gathering of more than 50 people in DC or state capitols on important days related to elections, so the House member might have the opportunity to go to court to try to block the gatherings.
Like Thompson’s lawsuit, the second insurrection lawsuit is also seeking damages but hasn’t named an amount.
After the riot, Swalwell served as a House manager in Trump’s impeachment. The Senate voted for acquittal, with 57 of 100 senators finding Trump guilty, a split that failed to reach the required two-thirds majority for a conviction.
After that vote, Senate Minority Leader Mitch McConnell appeared to point to criminal prosecutors and private parties who could take Trump to court over the riot. McConnell said Trump was “still liable for everything he did while he was in office” and noted, “we have civil litigation” from which a president would not be immune.
Both the Thompson and Swalwell lawsuits could face a challenge in court on their claims under the Ku Klux Klan Act.
The KKK statute has not been widely used, according to University of Texas Law professor and CNN Supreme Court analyst Stephen Vladeck.
“It was specifically meant to provide federal civil remedies for federal officers who were prevented from performing their duties by two or more individuals, whether federal marshals in the post-Civil War South, federal judges in un-reconstructed lower courts; or federal legislators,” Vladeck said last month.
“It’s not at all hard to see how that provision maps onto what happened on January 6,” he added. “The harder question is whether Trump himself can be connected to that conspiracy.”
In Thompson’s suit, the Mississippi Democrat points to Trump’s words and tweets in the months leading up to the insurrection to accuse
Trump and Giuliani of mobilizing and preparing their supporters for an attack to prevent Congress from certifying the 2020 election results on January 6. The suit, whose legal contours are being handled by the NAACP, was the first civil action filed against the former President related to the January 6 attack.
It landed in court in the days after Trump was acquitted by the Senate for inciting the siege.
In the Thompson lawsuit, Trump received formal notice recently that he was being sued.
According to a notice to the federal court filed this week, Trump received his summons by certified mail in February. It was mailed to him at Mar-a-Lago and received thereby a person named “Ricky.”
The service of a lawsuit is a standard procedural step in any lawsuit, and nothing about Trump’s receipt of the summons to respond to the suit is unusual. However, the step kicks off proceedings so they can move forward in court.