Swalwell seeks to hold Trump, Brooks responsible for Jan. 6 insurrection

Legal process could uncover more information about any planning on the attack on the Capitol

Impeachment manager Rep. Eric Swalwell, D-Calif., is seen during a break on the third day of the impeachment trial of former President Donald Trump on Thursday, Feb. 11.  (Tom Williams/CQ Roll Call)
Impeachment manager Rep. Eric Swalwell, D-Calif., is seen during a break on the third day of the impeachment trial of former President Donald Trump on Thursday, Feb. 11. (Tom Williams/CQ Roll Call)
Posted March 5, 2021 at 10:58am

California Democratic Rep. Eric Swalwell filed a lawsuit Friday that accuses Alabama Republican Rep. Mo Brooks of directly inciting the violence at the Capitol in the Jan. 6 insurrection, launching an unusual episode of congressional member vs. member legal action.

Swalwell’s lawsuit is the second filed by Democratic members of Congress seeking damages from Donald Trump and the former president’s lawyer, Rudy Giuliani, for their role in the events.

Swalwell, a former prosecutor, also names Brooks and Donald Trump Jr., both of whom promoted and spoke at the rally near the Washington Monument that preceded the attack, as part of the alleged conspiracy.

“Brooks — acting in his personal capacity — conspired with the other Defendants to undermine the election results by alleging, without evidence, that the election had been rigged and by pressuring elected officials, courts, and ultimately Congress to reject the results,” the lawsuit states.

Brooks is also a former prosecutor and has been among the most vocal backers of Trump’s bogus election fraud claims. He has also said the attacks were preplanned before he ever spoke at the rally.

Swalwell’s lawsuit recounts Brooks’ public statements and tweets that the election was not legitimate and that Congress could reject the results of the election from states that Trump had claimed were stolen — as well as his comments directly ahead of the attack.

“Brooks told the attendees at the rally that their country was literally being taken from them, that the scale of wrongdoing was of historical proportions, that it was time to start ‘kicking ass,’ and that the individuals who were there that day had to be ready to perhaps sacrifice even their lives for their country,” Swalwell’s lawsuit states.

The lawsuit specifically highlights when Brooks told the crowd that, “Today is the day American patriots start taking down names and kicking ass!”

“Now, our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives, to give us, their descendants, an America that is the greatest nation in the world,” Brooks said at the rally. “So I have a question for you: Are you willing to do the same?”

Brooks, in a news release earlier this week, criticized the “false narrative that demonstrators were whipped into a fervor by Save America Rally speeches at the Washington Mall Ellipse” and demanded that “each and every Socialist Democrat, Fake News Media outlet, and RINO 'Surrender Caucus' Republican who sullied my good name by accusing me of inciting violence, publicly apologize and retract their statements.”

“They maliciously took statements out of context that I made in my Save America Rally speech and intentionally distorted them to make it seem like I encouraged violence. I did no such thing,” Brooks said in the news release.

Swalwell’s lawsuit was filed a few weeks after Democratic Rep. Bennie Thompson of Mississippi, a member of the Congressional Black Caucus whose long fight for civil rights has included removal of Confederate imagery from his state’s flag, filed a lawsuit to hold Trump personally responsible for the violent insurrection.

Both lawsuits — filed the lawsuit under the Ku Klux Klan Act, passed in 1871 in the wake of the Civil War, which bans any conspiracy to prevent members of Congress from discharging the duties of their office — likely will face motions to dismiss from Trump.

If courts allow the lawsuits to move forward, the legal process could allow the Democrats to uncover more information about any planning on the attack on the Capitol.

Swalwell was one of the impeachment managers during a Senate trial against Trump on a charge of incitement of insurrection. Those managers recounted many of the same facts at the trial as in the Thompson and Swalwell lawsuits, such as Trump’s false assertions of fraudulent elections, statements that did not denounce violent behavior of his supporters, and announcing a “wild” rally on the date of the joint session of Congress to finalize the election results.

The Senate voted 57-43 vote to acquit Trump on an impeachment charge, short of the 67 votes required to convict him.