Rep. Eric Swalwell Testifies in Case to Keep Trump Off the Ballot

Rep. Eric Swalwell (D-Calif.) during the House Judiciary committee hearing on Capitol Hill in Washington, D.C., on June 24, 2020. Anna Moneymaker/POOL/AFP via Getty Images

Rep. Eric Swalwell (D-Calif.) testified on Oct. 30 in a trial in Colorado in a case that seeks to keep former President Donald Trump from appearing on the Colorado primary ballot.

Mr. Swalwell testified via video conference, describing the events of Jan. 6, 2021, from his perspective. He was in the Capitol when the Electoral College votes were being certified and had “gaveled” the Congress in that day, leading the pledge of allegiance.

“We connected the president’s tweets to our own safety in the chambers,” he said, “and the integrity of the proceedings taking place.”

Attorneys showed him a post on Twitter, now known as X, in which President Trump wrote that Vice President Mike Pence didn’t have the “courage” to give states “a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify.”

“USA demands the truth!” the president wrote.

“We interpreted it as a target had been painted on the Capitol,” Mr. Swalwell said.

The case was brought by the left-leaning Citizens for Responsibility and Ethics in Washington representing six voters in Colorado, who are arguing that President Trump participated in an “insurrection,” thus disqualifying him from holding elected office, according to Section 3 of the 14th Amendment.

The 14th Amendment was ratified after the Civil War, and it conferred citizenship and equal rights to all people born or naturalized in the United States, with the intention of protecting the rights of all former slaves. It includes a section that barred those who had engaged in “insurrections or rebellions” against the nation from holding office, unless they had two-thirds approval from Congress.

Some states have already dismissed 14th Amendment cases arguing that President Trump should be kept off the ballot, and additional cases may yet be brought forth. In addition to Colorado, a similar trial begins this week in Minnesota on Nov. 2.

Jan. 6 Experience

As a member of Congress for 11 years, Mr. Swalwell had also been part of the 2013 and 2017 vote certifications for the presidency.

“New Congress [is] sworn in on the third, and on the sixth is when the votes are certified,” he said, adding that this joint session is largely ceremonial and the vice president presides over the count. During these proceedings, any objections need to be made from both the House and Senate, and if there are any, a debate would be opened.

He said his understanding was that President Trump’s legal avenues for challenging the election had already been exhausted in December 2020.

He said he took a morning run in the capital and saw people carrying dozens of signs saying “Stop the steal” and some people wearing tactical gear. “It gave me an unsettling feeling about the direction the day was going.”

Then he said that he and several of his Democratic colleagues watched President Trump’s speech from a cloakroom off the floor. He claimed that the former president had “fired up” his supporters, and it all “came together on the 6th” from what he saw on the streets and during the speech.

He said it appeared that “an angry mob” had gathered around President Trump and then the president “aimed them at the Capitol.” Then, he said, his colleagues expressed shock and wondered what it meant for them.

During the 2021 certification, only about a dozen members were on the floor, members from states expecting challenges, he said. The order is alphabetical, starting with Arizona.

“Myself and everyone around us on the floor had our phones out, and we were watching intently what was going on around us at the Capitol,” he said, adding that they also received alerts of potential pipe bombs. “This was between 1 and 2 o'clock.”

Then-Speaker Nancy Pelosi was escorted off the podium by her security detail, but the debate continued seamlessly, he added, for about 30 minutes. A Capitol police officer then went to the lower podium and told everyone that unauthorized people had made it into the building and tear gas was being dispersed, and they had to be ready to put on their gas masks and be ready to evacuate. He was in disbelief, he said, apparently tearing up during the testimony.

“Until that moment I did not know there were gas masks under our seats,” he said. “I think people were surprised they were even there.”

He said Republican colleagues were pushing furniture to block the back doors of the chamber. “We could hear the pounding on those doors and the shouting of those rioters outside the doors,” he said. Eventually, police officers asked them to evacuate, but he was “horrified” to see that colleagues on the third floor were still unable to leave by the time all the members on the floor had exited. He estimated it took 10 to 15 minutes to get everyone out.

Holding Room

After they were evacuated to a different room, police officers gave them updates every 15 minutes or so, but it was always the same message, he said—that the Capitol was under attack and they were corralling resources to keep it under control. At one point, they were told buses could be brought to the side to take them out of the building. He said Rep. Adam Schiff (D-Calif.) said they shouldn’t leave and that in the event of a “coup,” they should finish certifying the votes.

Mr. Pence had circulated a statement that he wouldn’t be stepping outside and would continue to certify the votes, Mr. Swalwell said.

“It was well known ... that President Trump believed that Vice President Pence had the power to object to the electoral ballots that were being sent from the states,” Mr. Swalwell said.

Mr. Swalwell said he and his colleagues had followed President Trump’s speech and posts with great interest, so they saw the posts calling for peace, two tweets and one video. He said he saw others repeat President Trump’s message calling for people to go home, so it had an effect but didn’t clear the Capitol.

Return to Congress

Members of Congress returned to the chamber in the evening, and Mr. Swalwell said it was “unsettling” to learn that some of his colleagues still challenged the votes for various states.

“There was an ‘Are you kidding me?’ sentiment,” he said. “There was a lot of anxiety that the debate would continue.”

He was one of the earlier arrivals back in the chamber, he explained, and stepped over broken glass that was still being cleaned up. He said he saw FBI technicians photographing the area and recalled some of his colleagues having an argument. The votes were finally certified at about 3 a.m.

He said that while they were in the evacuation holding room, Judiciary Committee members had discussed what to do to allow the inauguration of President Joe Biden to take place, and a week later, articles of impeachment were brought forth. Mr. Swalwell served as part of the impeachment manager team. That second impeachment occurred on Jan. 13, 2021. In the Senate, the vote on whether President Trump committed insurrection fell short of a two-thirds majority by 10 votes.

He recalled that Sen. Mitch McConnell (R-Ky.) said that his vote to acquit didn’t mean President Trump wouldn’t be “held accountable” and that there were “other legal means” to ensure it.

Cross-Examination

During cross-examination, Mr. Swalwell was asked about the personal injury lawsuit that he brought against President Trump in Washington. Defense attorneys said that he could be biased because if the Colorado suit succeeds it may benefit his own case.

Mr. Swalwell agreed that President Trump asserted his First Amendment rights in giving his speeches that day and that phrases such as “fight like hell” were common in politicians’ speeches that don’t call for violence.

He said that he believed President Trump had seen people “abusing” police officers and so sent a tweet asking people to “stay peaceful.”

Mr. Swalwell’s testimony was preceded by the testimony of Officer Daniel Hodges, who described his experience in the crowd outside the Capitol.