"A direct and forseeable consequence": Swalwell sues Trumps, Giuliani, Brooks over Capitol riot; UPDATE: Discovery, wonders NYT?

Didn’t the House already have its say on incitement and the Capitol riot? Impeachment manager Eric Swalwell has decided to take his case into federal court instead, filing a civil complaint against Donald Trump et al earlier this morning. The lawsuit makes claims for damages against Trump for his rally on January 6th, the rhetoric he and other speakers used at it, and the “direct and foreseeable consequence” of the attack on Congress that followed.

Swalwell joins fellow House Democrat Bennie Thompson in this effort, but they will both find out that impeachment is a lot different than federal court:

In a lawsuit filed in federal court in Washington, D.C., Friday, Democratic Rep. Eric Swalwell has sued former President Donald Trump and some of his allies, including his son, Donald Trump Jr., Rudy Giuliani and GOP Rep. Mo Brooks over their alleged roles in the events leading up to and surrounding the Capitol assault on Jan. 6.

In the 65-page lawsuit Swalwell, who was a House impeachment manager during Trump’s second Senate trial, alleges that they all directly incited the violence at the U.S. Capitol by putting out “a clear call to action” that the crowd responded to.

“Trump directly incited the violence at the Capitol that followed and then watched approvingly as the building was overrun,” the lawsuit states.

“As Trump was instructing them to go to the Capitol, insurgents were already forcing their way through barricades, attempting to breach the building, while blasting Trump’s speech on a bullhorn,” it says.

Morally, there’s a case for this, but federal courts don’t deal with morality. The House has that luxury in the impeachment process, which doesn’t require an actual crime. Swalwell spends a lot of time building the long moral case against Trump et al for incitement, beginning with Election Day and extending all the way to the rally. As a moral argument, it’s fairly comprehensive; as a political argument, it’s solid but essentially unchanged since the impeachment process.

As a legal argument, though, this looks suspect to the point of stunt-hood. If the word “fight” qualified for incitement, then every politician and activist in America would be at risk for being charged. (How many members of Congress would be liable under this theory for any violence at a “Fight for 15” rally?) “Inflammatory language” alone does not incitement make, especially as far removed from the event as most of what Swalwell cites in his complaint. The rhetoric must be intended to cause “imminent lawless action,” as the Supreme Court ruled in Brandenburg v Ohio, even in situations where the rhetoric involved approving of violence:

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who ‘advocate or teach the duty, necessity, or propriety’ of violence ‘as a means of accomplishing industrial or political reform’; or who publish or circulate or display any book or paper containing such advocacy; or who ‘justify’ the commission of violent acts ‘with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism’; or who ‘voluntarily assemble’ with a group formed ‘to teach or advocate the doctrines of criminal syndicalism.’ Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action.4 Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

Bear in mind that this case dealt with explicit endorsements of violence, not so-called dog-whistles wrapped in familiar political terminology. The case against Brandenburg came from a Klan rally in which a cross was burned, and which promised “revengeance” against the President, Congress, and the Supreme Court if they continued “to suppress the white Caucasion race.” Reporters filmed the rally, and prosecutors charged Brandenburg over his remarks and the explicit threat of violence. Nonetheless, the court ruled per curiam that Brandenburg had a First Amendment right to speak about violence as long as he was not explicitly urging “imminent lawless action.”

A civil case might have a lesser evidentiary threshold, but not a lesser constitutional threshold. To succeed in this lawsuit, Swalwell will have to point to an explicit call to imminent violence by each of the respondents individually. The closest Swalwell’s complaint comes to that is a quote from Brooks about “kicking ass,” a number of citations of the word “fight” in various forms, and the need to “save the republic.” None of these work legally as an explicit call to imminent violence, although Giuliani’s call for “trial by combat” might be enough to catch a judge’s interest. Even that, though, would have to be read in its full context, and unless Giuliani told the crowd explicitly to go and conduct that trial by combat, it’s likely not going to pass Brandenburg muster.

This probably won’t progress even that far. A federal judge is likely to view this lawsuit from an impeachment manager with considerable skepticism, simply on the basis of constitutional standing. The House, and especially Swalwell, already made this case in its effective venue, and impeached Trump. Why does Swalwell need to rehash the impeachment in federal court? That may be why Swalwell added the other respondents, and perhaps a federal judge will be curious enough to proceed with the case against the others to let it slide. But if this lawsuit succeeds, then political speech will have become greatly restricted — and some of Swalwell’s colleagues might end up regretting that before long.

Update: The New York Times is intrigued over the potential for the discovery process:

Though not a criminal case, the suit charges Mr. Trump and his allies with several counts including conspiracy to violate civil rights, negligence, incitement to riot, disorderly conduct, terrorism and inflicting serious emotional distress — findings that could severely tarnish his legacy and political standing. If found guilty, Mr. Trump could be subject to compensatory and punitive damages; if the case proceeds, it might also lead to an open-ended discovery process that could turn up information about his conduct and communications that eluded impeachment prosecutors.

The House could have conducted that process themselves. They skipped over the investigation, however, and chose to go directly to an article of impeachment. At that time, they claimed that the incitement was so obvious — and that Congress had sufficiently witnessed it — that there was no need for an investigation, hearings, and participation by the defense against the allegation.

It’s a little late in the day for Swalwell to want discovery, especially as a House impeachment manager. And the legal theory behind this lawsuit shouldn’t survive long enough to get to that process now.