Attorneys for Democratic California Rep. Eric Swalwell have been trying to serve a lawsuit that seeks relief in the aftermath of the Jan. 6 Capitol riot on Republican Alabama Rep. Mo Brooks for nearly three months to no avail, they said Wednesday.
Swalwell’s legal team petitioned a judge for a 60-day extension after lawyers claimed Brooks had eluded their calls and emails since March 5, according to a court filing.
“[Swalwell] watched as Capitol Police officers drew their weapons, barricaded entrances, and ordered the Plaintiff and other members of Congress to seek shelter, put on gas masks, and take cover in case there was gunfire. The Plaintiff 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 suit reads.
Plaintiffs initially had 90 days to get a response from Brooks by June 5, and attorneys requested a U.S. marshal accompany them to serve the lawsuit “in light of [Brooks’s] ongoing refusal to waive service and the inherent difficulties of attempting service on a sitting Member of Congress.”
Swalwell had obtained the services of a “private investigator to attempt to serve Brooks personally” throughout April and May, though the individual was unable to complete the task, lawyers said.
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A judge later granted the 60-day extension, though he did not approve the services of a U.S. marshal “due to separation of power concerns,” according to an electronic filing.
Swalwell sued Brooks, former President Donald Trump, Donald Trump Jr., and Rudy Giuliani on March 5 over the Capitol breach.
All four of the defendants proliferated election fraud claims and engaged in “conspiracy to violate civil rights,” “incitement to riot,” and terrorism, according to the lawsuit filed by Swalwell in Washington, D.C., federal court.
Swalwell, who seeks monetary relief, also accused the high-profile political figures of inflicting emotional distress on him while he was present in the Capitol during the riot.
Swalwell’s lawyers have alleged that Brooks is aware of the litigation as he tweeted about it the same day it was filed. Brooks also provided a statement to the Washington Examiner at the time the lawsuit made headlines.
“Socialist Eric Swalwell’s frivolous lawsuit is a meritless ploy by a man who betrayed his country by bedding a Communist Chinese spy while serving on the Intelligence Committee that hears America’s highest classified security secrets,” he said in an email March 5. “I make no apologies whatsoever for fighting for accurate and honest elections. In sum, I wear Communist-sympathizer Swalwell’s scurrilous and malicious lawsuit like a badge of courage.”
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Trump, Trump Jr., and Giuliani have responded to requests, lawyers said. The former president moved to dismiss the lawsuit through his attorney, Jesse Binnall, on May 25.
Swalwell’s decision to sue runs “afoul of well-established, important, constitutional doctrines,” specifically the First Amendment, Binnall said in a court filing, adding that the 45th president has “absolute immunity” given his time in the Oval Office.
Swalwell’s claims were baseless, Brooks said Thursday.
“First, under the law, it is the plaintiff’s job to serve a lawsuit on a defendant, not the other way around. It is not a defendant’s job to alter his conduct and go out of his way to seek out suit service,” he told the Washington Examiner in an email. “Second, I am avoiding no one. I have altered my conduct not one iota since Swalwell’s politically motivated, meritless lawsuit was filed.”
“Third, Swalwell is wrong (perhaps to the point of being illegal) to seek to use federal property and federal employees (my staff) for his personal and political gain, which is what his lawsuit is about,” he added. “Fourth, I HAVE PUBLICLY VOTED ON THE HOUSE FLOOR MORE THAN 100 TIMES since the lawsuit was filed. Public notice of EACH vote was given to Swalwell. He could, if he so desired, have served me at any time during, before or after these votes.”
