Trump’s Lawfare Against Swalwell

T here are two aspects to consider regarding President Donald Trump’s lawfare against his political enemy, former Democratic California Representative Eric Swalwell. They are temporally close but substantively distinct: publicizing confidential law enforcement to humiliate Swalwell and conducting a criminal investigation against him.

Let’s start with the latter. As Brittany has reported for National Review, the Justice Department has conducted court-authorized searches of electronic devices seized from Swalwell at the airport in San Francisco and, a day later, at his apartment in Washington, D.C. As I understand it, the ongoing FBI criminal investigation to which these seizures relate centers on allegations by a former Swalwell Hill staffer that he raped her.

The bureau has reportedly interviewed at least three other women who’ve made sexual harassment allegations about Swalwell (“sexting” lewd photos and the like). Press reports indicate that more than a dozen women came forward with accounts of disturbing behavior and solicitations by Swalwell — a scandal that induced him to withdraw from his campaign for California governor and to resign from Congress. For now, though, it appears that the former staffer’s allegations are key because they are the putative federal jurisdictional hook.

I’ve observed before (in connection with the Epstein controversy and the investigation — closed without charges — of Florida’s former Republican Representative Matt Gaetz) that sex crime accusations are almost exclusively grist for state and municipal prosecutors. In this instance, however, it appears that the Trump Justice Department is theorizing that Swalwell violated federal civil rights laws. Specifically, Section 242 of the penal law (Title 18, U.S. Code) makes it a felony, punishable by up to ten years’ imprisonment, for a government official acting “under color of any law, statute, ordinance, regulation, or custom,” to deprive a person of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”

The DOJ thinking apparently is that Swalwell exploited his superior position as a member of Congress to force himself sexually on a subordinate, and subsequently to keep her quiet about his having done so, thereby depriving her of her constitutional right to bodily privacy. (The Fourth Amendment, for example, safeguards one’s “person” against unreasonable intrusions by the government.)

This is a stretch, at least on the civil rights front. (By contrast, if investigators have evidence that Swalwell pressured the staffer to deny or deflect if asked about the alleged tryst by law enforcement agents, there could be grounds for a witness tampering and/or obstruction case.) The usual scenario in which Section 242 has been invoked involves very blatant exploitation of a superior/subordinate relationship rooted in legal authority — classically, the police officer or prison guard who coerces sex under threat of arrest or punishment.

By contrast, the former staffer alleges that Swalwell assaulted her in 2024 after a night of heavy drinking while she was no longer working for him. The woman maintains that this was the second time Swalwell, she believes, took advantage of her; the first allegedly occurred five years earlier, in 2019: She claims to have awoken naked next to him after another boozy night, and to have physically felt like they’d had sexual contact, though she said she had no memory of it.

These are the kinds of allegations that federal prosecutors would not normally pursue. The 2019 incident is time-barred (the statute of limitations is five years), the witness is hazy about what happened, and she continued to work for Swalwell for years afterward. As for the germane 2024 incident, putting aside obvious questions about whether the encounter (if it happened) was consensual, how could Swalwell be said to have acted under color of law or custom when the alleged victim was no longer his congressional subordinate? If that’s a civil rights violation, then every sexual assault becomes a federal crime — which, clearly, is not what the civil rights statutes were understood to mean when enacted.

Of course, lawfare begets lawfare. In his haste to criminalize Trump’s corrupt attempt to reverse the result of the 2020 election, Biden DOJ special counsel Jack Smith resorted to the civil rights laws to claim that the president had acted under color of law to deprive Americans in battleground states of their federal right to vote. This was a loopy theory given that (a) no one was prevented from voting, (b) every state has legal processes for challenging election results, (c) the ballots cast by voters would not have been nullified in the absence of a judicial or state legislative determination that the election had been illegally conducted in some way, and (d) the civil rights laws undeniably vest the federal executive branch with authority to investigate whether fraud occurred in elections conducted by the states (as manifested by the very fact that Smith was investigating Trump for forms of election fraud). Smith’s dubious position was that Trump was corruptly motivated to investigate the election because he knew he lost. Even if we assume for argument’s sake that Smith could prove beyond a reasonable doubt what Trump knew and that his intent was fraudulent, the prosecution theory was shredded by the Supreme Court’s 2024 presidential immunity ruling (Trump v. United States, holding that if a president’s actions are objectively within the ambit of executive power, then courts will not consider whether the president’s subjective intent was corrupt).

Bottom line: Smith indicted Trump for depriving people of civil rights. Our “retribution” president has not forgotten, and his minions at the DOJ and FBI thus know what is expected of them.

The second aspect of the Swalwell lawfare, about which Brittany also reported, is the Trump administration’s publication of a 2015 FBI interview in which Swalwell (then still a member of Congress) admitted having had sexual relations with a suspected Chinese spy, Christine Fang (aka “Fang Fang”). This law enforcement information was released by the “White House Transparency Task Force,” a Trump vehicle for politicizing intelligence against his political enemies, just as Obama and Biden officials politicized intelligence against him — in its Orwellian way, the task force mirrors the Trump DOJ’s “Weaponization Working Group,” which weaponizes law enforcement against Trump nemeses under the guise of combating such weaponization.

In typical misdirection, the administration claims that the disclosure was justified because the president has the power to declassify any intelligence and the public should be informed about the clandestine operations against the U.S. by the Communist Chinese regime. Let’s put aside the obvious — namely, that the president is more interested in damaging his partisan political foes than exposing China’s sabotage. The fact that a president has unlimited authority to declassify documents has nothing to do with whether it is legal for the government to publicize confidential law enforcement information that is embarrassing to people the Justice Department has not charged with a crime.

When Swalwell and his lawyers got wind of what the administration was contemplating, they admonished the FBI that it would be violating the Privacy Act (codified at Section 552a of Title 5, U.S. Code) if it publicly released investigative information (including Swalwell’s voluntary interview) connected to a matter in which he was not charged. There are also longstanding DOJ regulations against publicizing information that implicates uncharged persons in wrongdoing (whether illegal or humiliating) when that information has been amassed under law enforcement authority for investigative purposes.

The administration ignored the warning and released Swalwell’s interview anyway. This was done to embarrass Swalwell, who had long been suspected of having a sexual relationship with a Chinese spy but had not public acknowledged it. Obviously, even if we suspend disbelief and grant that the president simply wanted to inform the public about China’s perfidies, it was unnecessary to out Swalwell to this extent. That was done because he has been a rabid anti-Trumper.

What happens now? Probably nothing. Even if Swalwell has a viable Privacy Act claim, the money damages would be modest and, more consequentially, such a lawsuit would just call attention to embarrassing facts that the former representative spent over a decade trying to conceal. I suppose Swalwell could sue so that, in the event he is indicted, it would bolster his inevitable claim that he is being selectively prosecuted out of political animus. But, for the reasons outlined above, I don’t believe the civil rights investigation will result in charges and, even if it does, Swalwell already has plenty of ammunition for a selective prosecution motion. (That doesn’t mean such a motion would succeed — it’s very uphill.)

It’s worth stressing that, particularly after the Supreme Court’s immunity ruling discussed above, President Trump simply is not worried that he will eventually be sued or prosecuted for abusing executive power — exploiting it to harass, humiliate, and otherwise punish his political foes. And before leaving office, Trump is certain (in my view) to preemptively mass-pardon his subordinates involved in these episodes, which will spare them from prosecution for past criminal allegations but not civil suits or embarrassing testimony that could portend legal jeopardy (as Dr. Anthony Fauci can tell you).

Only Congress can take action that curtails lawfare. The Republican-controlled Congress has no inclination to check the executive in this regard; hence, we should expect that the next Democratic administration, relying on the Trump precedents, will make Obama- and Biden-era lawfare seem mild.

Author’s note: I’ve slightly edited the penultimate paragraph of this column to make sure it’s clear that a pardon shields the pardoned person only from criminal prosecution for conduct occurring up to the time of the pardon (as described in the pardon), but not from civil lawsuits or criminal prosecution for conduct subsequent to the pardon; moreover, a pardon carries no immunity from testimony (indeed, because it carries immunity from prosecution, it makes summonses to testify more likely — hence, the Dr. Fauci example).