Did Eric Swalwell offer vindication for Donald Trump with his lawsuit?

 
By JONATHAN TURLEY

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 riot at the Capitol.

Swalwell’s complaint against Trump – along with son Donald Trump 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.

But any such prosecution likely would collapse at trial or on appeal, and people like Racine are not eager to prove Trump’s case by reversal. 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 ensure failure, Swalwell picked the very tort – emotional distress – that was rejected by the Supreme Court, which in 2011 ruled 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 cause of his claimed injuries. Swalwell and others have 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.

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 the FBI director testified that a warning of plans to storm the Capitol was sent on all of the channels created for sharing such intelligence.

Former Capitol Police Chief Steven Sund also 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 understaffed. 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 timeline. 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. 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.). Finally at 2:38 p.m. Trump called for his followers to be peaceful and to support police.

Many people think Trump should have spoken earlier. I condemned his speech while he was giving it. Yet various people took actions or failed to that left the Capitol vulnerable. And, at trial, a comparison could be drawn to the violence around the White House last summer 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 Democrats, the mayor, and the media.

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