Swalwell files suit against Trump over Capitol attack

WASHINGTON — All the broken windows are replaced and Joe Biden is in the White House, but two prominent Bay Area Democrats are keeping the focus on former President Donald Trump, Republicans and the insurrection at the Capitol on Jan. 6.

East Bay Rep. Eric Swalwell filed a lawsuit Friday against Trump and his allies over the attack by a mob of his supporters, claiming emotional distress. And San Jose Rep. Zoe Lofgren quietly released an extensive compilation of social media posts of Republicans in Congress with a preface that suggests some may have “aided and abetted” the insurrection.

Swalwell, D-Livermore, sued Trump, the former president’s son Donald Trump Jr., his ally and one-time lawyer Rudy Giuliani and Rep. Mo Brooks, R-Ala. All four spoke at the pro-Trump rally outside the White House that immediately preceded the Capitol riot. In a statement, Swalwell said their actions led to the attack that “terrorized lawmakers” and interfered with their certification of the presidential election results.

“The defendants assembled, inflamed and incited the mob, and as such are wholly responsible for the injury and destruction that followed,” Swalwell said.

Swalwell’s unusual move of suing a fellow House member and Lofgren’s social media sweep are part of the growing tension between Democrats and Republican lawmakers who supported Trump’s efforts to overturn Biden’s victory.

Separate from Swalwell, Lofgren had her staff compile a review of social media posts from Republicans who voted against recognizing the Electoral College results. In a foreword to the compilation, the longtime Judiciary Committee member said fellow Democrats and constituents had sought her guidance on consequences Republican lawmakers who sought to reverse the election results could face.

Lofgren declined to discuss how the 1,900 pages of social media posts could be used, and did not publicize the collection when it went up on her website. She told Democratic colleagues of its existence last week, and it was discovered by CNN and the Punchbowl News newsletter early Friday.

Among the posts are those from California Republicans including House GOP leader Kevin McCarthy of Bakersfield and Reps. Devin Nunes of Tulare, Darrell Issa of Vista (San Diego County) and Doug LaMalfa of Richvale (Butte County).

In the foreword, Lofgren wrote that “like former President Trump, any elected Member of Congress who aided and abetted the insurrection or incited the attack seriously threatened our democratic government.” She said their actions could “violate a number of criminal statutes, although the decision about whether to file such charges is outside the purview of Congress.”

Swalwell’s civil claim moves the issue of the former president’s conduct into the courts, after the Senate acquitted Trump last month of impeachment charges of inciting the insurrection that left five dead. Swalwell was one of the House prosecutors in the Senate trial.

His lawsuit makes use of a little-known provision of federal law in the Ku Klux Klan Act of 1871 that bars political intimidation to try to hold Trump and the other defendants responsible for the attack that chased Swalwell and other lawmakers from the House and Senate chambers.

Much like Swalwell and other House prosecutors did in the impeachment trial, the lawsuit details how Trump and his co-defendants spent months leading his supporters to believe the 2020 election results were fraudulent and publicized the Jan. 6 protest. It claims they whipped up the pro-Trump protesters on the day of the rally and encouraged them to march on the Capitol, then continued to incite them during and after the riot.

Swalwell also claims he was personally affected as Capitol Police officers held off members of the mob at gunpoint while he and others were still on the House floor.

Swalwell “prepared himself for possible hand-to-hand combat as he took off his jacket and tie and searched for makeshift instruments of self-defense,” the lawsuit says. “As the plaintiff watched this horror unfold, he texted with his wife in what he felt could be his last moments, telling her ‘I love you very much. And our babies.’ ”

The suit asks the court to order Trump and the others to pay unspecified monetary damages, give notice to Swalwell before holding any future election-timed rallies, and to pay Swalwell’s attorney fees.

In response, Trump spokesperson Jason Miller said in a statement that Swalwell is a “low-life” with “no credibility.”

“After failing miserably with two impeachment hoaxes,” Swalwell is pursuing “our greatest president with yet another witch hunt,” Miller said.

The suit follows similar legal action taken by the NAACP and Rep. Bennie Thompson, D-Miss., claiming Trump incited the riot. Like that suit, Swalwell’s legal bid will likely have to overcome the challenge of proving that Trump’s actions lay outside the “outer perimeter” of his authority, a standard that courts have laid out in previous civil cases against presidents.

Swalwell himself has become a focal point of the tension at the Capitol between Democrats and Republicans. Miller referenced a Republican talking point against Swalwell, alluding to a 2015 FBI investigation into an alleged Chinese spy who interacted with the lawmaker in the East Bay in calling the Democrat “compromised.” There is no evidence of wrongdoing by Swalwell.

Swalwell told The Chronicle last month that the close of the impeachment trial was the end of his chapter as a chief Trump critic, a four-year stretch that brought him prominence on cable television news and social media.

“It’s a new chapter personally for me, and I think the end of an accountability chapter for Donald Trump and Congress,” Swalwell said.

But in filing the suit, Swalwell ensures he will be front and center of the continuing fallout over the events of Jan.

6.

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter: @talkopan