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Trump asks judge to throw out Capitol riot lawsuit

Lawyers for the former president argued he has absolute immunity for his actions while in office.
Pro-Trump protesters gather in front of the Capitol on Jan. 6, 2021.
Trump supporters gather in front of the Capitol on Jan. 6, 2021.Jon Cherry / Getty Images file

WASHINGTON — Lawyers for former President Donald Trump urged a federal judge late Monday to dismiss a lawsuit against him filed by Rep. Eric Swalwell, a Democrat who helped argue the House impeachment case against Trump.

The former president has absolute immunity from civil lawsuits over his official actions while in office, his lawyers argued, and he was free as president to advocate for Congress to take action favorable to him in counting the electoral vote, just as he was free to push Congress to pass bills he supported.

They also said the lawsuit improperly invites the federal courts "to make a determination about what is or is not proper for the president to say at a political speech advocating for governmental action."

Swalwell, from California, accused Trump, Donald Trump Jr., Rudolph Giuliani and Rep. Mo Brooks, R-Ala., of violating federal civil rights and local incitement laws. All spoke at a rally near the White House on Jan. 6 before members of the crowd moved on to the Capitol.

The mob attack on the Capitol was "a direct and foreseeable consequence of the defendants' false and incendiary allegations of fraud and theft, and in direct response to the defendants' express calls for violence," Swalwell's lawsuit said.

In their response, the Trump lawyers argued that because he was impeached, tried in the Senate and acquitted, Trump cannot be sued for the same conduct.

The Constitution provides that a president who is impeached and convicted in the Senate can, once out of office, be subject to criminal or civil actions. His lawyers argue, without offering any legal support, that the opposite must be true: A president acquitted in the Senate is beyond the reach of the courts over similar claims.

In bringing the lawsuit, Trump's lawyers said, Swalwell was "blaming his emotional infirmities on former President Trump, Donald Trump Jr., and the other defendants" and was "weaving his own conspiracy theory based on political speech taken out of context and actions of independent individuals with whom Mr. Trump never had contact."

Trump faces a similar lawsuit filed by Rep. Bennie Thompson, D-Miss., joined by 10 other members of Congress and the NAACP. Both cases invoke the Civil Rights Act of 1871, commonly known as the Ku Klux Klan act, which allows lawsuits against government officials for claims that they conspired to violate civil rights.

The Thompson suit contended that Trump and Giuliani conspired with two extremist groups, the Proud Boys and Oath Keepers. Swalwell focused on the former president and speakers at the rally and said they "directly incited the violence at the Capitol."

The reply by Trump's lawyers to the Thompson suit is due Wednesday.