Swalwell’s Lawsuit Against Trump et al., and the 5th Amendment.

One of the counts at interest.

Representative Eric Swalwell (who served as one of the House impeachment managers) has sued Donald Trump, Trump Junior, Rudy Giuliani and Representative Mo Brooks. I invite you to read the full lawsuit.

The lawsuit seeks damages for harms done to Swalwell during the Capitol insurrection that Swalwell alleges defendants incited. The lawsuit spells out the numerous actions by defendants, both before and on January 6, that Plaintiff alleges incited the sacking of the Capitol. I won’t get into the specifics of that as this post is about the interesting legal theories advanced.

Swalwell alleges the defendants violated the Ku Klux Klan Act (18 U.S.C. § 1985) which broadly creates a civil cause of action against any conspiracy or acts aimed at interfering with a public official’s performance of his duties. That legal theory is not new to this lawsuit, Representative Bennie Thompson filed a similar lawsuit under that theory against Trump and Giuliani a few weeks ago.

Swalwell, however, advances additional legal theories that I find interesting. First, he alleges the defendants violated several criminal statutes for the District of Columbia related to inciting a riot, conspiracy to disturb the peace, etc. Of course, Swalwell is not criminally prosecuting the case (he can’t do that).

Swallwell alleges the violations of these laws also amount to something called negligence per se. In law the four elements of negligent tort are:

  • Duty: Defendant had a duty to the plaintiff.
  • Breach: Defendant breached the duty to the defendant.
  • Harm: Plaintiff was harmed.
  • Causation: Defendant’s breach of duty caused the harm to the plaintiff.

When going to the first element (duty) this legal theory states that plaintiff (obviously) has a duty to obey the law. If the defendant broke the law, that is “negligence per se” (by itself or in itself). A plaintiff establishing that defendant has violated the law is deemed to have proven that the defendant breached a duty. With the first two elements proven plaintiff need only prove that he was harmed by this breach of duty.

My point here is that if Swalwell prevails on this theory then he has proven that those the court finds liable committed a crime. He has admittedly done so to a lower standard (the civil preponderance of evidence standard) than required in criminal court (proof beyond reasonable doubt), but it would mean that he has convinced the court that plaintiffs committed the underlying crimes necessary to establish negligence per se.

There is another interesting legal ramification of the plaintiff’s negligence per se theory. Because it creates an at least plausible argument that testimonial discovery, depositions, etc., could be used against the defendants in a criminal prosecution, the defendants could resist such discovery on 5th Amendment grounds.

Thus, the former President of the United States might well, and might be well advised, to invoke his 5th Amendment right to not testify against himself.

Wouldn’t that be interesting?

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80