March 8, 2021 Jonathan Turley
Below is my column in The Hill newspaper on the complaint filed by Rep. Eric Swalwell against former president Donald Trump. Swalwell just filed a complaint that could prove to be the vindication that Trump has long sought in the riot in the Capitol on January 6th.
Here is the column.
French philosopher Voltaire said he had only one prayer in life — “O Lord, make my enemies ridiculous” — and that it was uniformly granted by God. The answer to Donald Trump’s prayers may be Rep. Eric Swalwell (D-Calif.). It is not because of Swalwell’s relationship with a Chinese agent or the bizarre defenses of him, including one Democrat insisting he deserved the Medal of Honor. It is because Swalwell’s lawsuit against the former president could offer Trump the ultimate vindication over his role in the Jan. 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.) — alleges nine counts for relief, from negligent emotional distress suffered by Swalwell to negligence in the “incitement to riot.” One might think this would be a lead-pipe cinch of a case. After all, an array of legal experts has insisted for months that this was clear criminal incitement, not an exercise of free speech. As a civil lawsuit, it should be even easier to win, since the standard of proof is lower for civil cases.
Yet, for more than four years, many of these same experts claimed a long list of “clear” crimes by Trump that were never prosecuted or used as a basis for impeachment. Likewise, despite similar claims of criminal incitement, roughly three months have passed without a criminal charge against Trump. District of Columbia Attorney General Karl Racine insisted weeks ago that Trump’s alleged crime would be investigated. Yet any such prosecution likely would collapse at trial or on appeal, and people like Racine are not eager to prove Trump’s case.
Enter Swalwell, who has long exhibited a willingness to rush in where wiser Democrats fear to tread, with what may be his costliest misstep yet.
First, his lawsuit will force a court to determine if the defendants’ speeches were protected political speech. As if to guarantee failure, Swalwell picked the very tort — emotional distress — that was previously rejected by the Supreme Court. In 2011, the court ruled 8-1 in favor of Westboro Baptist Church, an infamous group of zealots who engaged in homophobic protests at the funerals of slain American troops. In rejecting a suit against the church on constitutional grounds, Chief Justice John Roberts wrote: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Roberts distinguished our country from hateful figures like the Westboro group, noting that “as a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Second, Swalwell must show that Trump was the factual and legal cause of his claimed injuries. Swalwell and others have expressly argued that, if not for Trump, the riot would not have occurred. But a trial will allow the defense to offer “superseding intervening forces” on that question — acts of others that may have caused or contributed to the breaching of the Capitol. A court could rule that Trump was not the “but for” cause of the riot before even getting to any legal causation or constitutional questions.
Claims of blame would have been easier to make before the House refused to hold hearings on Trump’s impeachment, including weeks after its “snap impeachment.” Now, facts have emerged that implicate Congress itself in the failure to take adequate precautions against rioters, despite advance warnings. Former House officials claimed an FBI warning was sent only in an email, a day before the riot — but FBI Director Christopher Wray has testified that a warning of plans to storm the Capitol was sent on all of the channels created for sharing such intelligence. Moreover, former Capitol Police Chief Steven Sund testified that he asked for National Guard support but was refused six times; one key official, Sund said, did not like “the optics” of troops guarding Congress. Delays at both the Capitol and the Pentagon allegedly left the Capitol woefully understaffed. And Trump has been quoted by former Acting Defense Secretary Chris Miller as warning him the day before the riot that “You do what you need to do. You do what you need to do. You’re going to need 10,000 (troops).”
There also is a growing problem with the riot’s time line. Swalwell’s complaint alleges a failure by Trump to act as violence unfolded. But as more information has been released, the time period has shrunk to a difference of minutes between the breach and Trump’s call for law and order. Trump ended his speech at 1:10 p.m. The first rioter entered the Capitol at 2:12 p.m. Eight minutes later, Trump had a heated call with House Minority Leader Kevin McCarthy (R-Calif.), who told him of the breach. Then at 2:26 p.m., Trump mistakenly called Sen. Mike Lee (R-Utah) instead of Sen. Tommy Tuberville (R-Ala.). Lee reportedly said Trump did not appear to realize the extent of the rioting. Finally, at 2:38 p.m., Trump called for his followers to be peaceful and to support police.That was roughly 30 minutes after the first protester entered the Capitol. Trump’s defense team will likely emphasize that the he not only told followers to go “peacefully” to the Capitol but made the call to obey law enforcement roughly 30 minutes after the first rioters entered the Capitol.
Many people think Trump should have spoken earlier. Indeed, I condemned his speech while he was giving it. Yet, various people took actions (or failed to take actions) that left the Capitol vulnerable. And, at trial, a comparison could be drawn to the violence around the White House during the previous summer: Fearing a breach of that complex, overwhelming force was used to create an expanded security perimeter — but the use of National Guard troops then was denounced by congressional Democrats, D.C.’s mayor, and the media.
Finally, Swalwell’s complaint accuses Trump of reckless rhetoric — but Swalwell could find himself on the witness stand having to answer for his own rhetoric. Those comments include his mocking of threats against Sen. Susan Collins (R-Maine). Swalwell, who now claims severe emotional trauma from the Capitol riot, dismissively tweeted “Boo hoo hoo” when angry protesters surrounded Collins’s home in 2018.
Swalwell’s complaint is timed beautifully to collapse on appeal just before the 2024 election, giving Trump and Republicans the ultimate repudiation of prior Democratic claims. Voltaire also famously said that “If God did not exist, it would be necessary to invent Him.” Luckily for Trump, Swalwell not only already exists, but he may be the very answer to Trump’s political prayers.