Justice Department declines to defend Rep. Mo Brooks against Jan. 6 incitement lawsuit

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Brooks cited Westfall Act, on which Trump himself previously invoked during his presidency, with the support of the Department of Justice, to obtain federal representation against a libel suit by New York writer E. Jean Carroll. The Biden administration has maintained this position.

But in Brooks’ case, the Justice Department dismissed the idea that he was acting in an official capacity, stating that his remarks at the Trump meeting were almost entirely political.

“The record indicates that the January 6 rally was a campaign activity or campaigning that is ordinarily presumed to have been conducted by Brooks in an unofficial capacity,” the Justice Department’s civilian attorneys said in a 29-page statement late Tuesday.

Brooks is also accused of fomenting violence against the Capitol, which goes against his duties as a legislator.

Earlier in the day, House counsel Doug Leiter made a similar rejection, noting that the House rarely gets involved in legal disputes between individual lawmakers, particularly when they have no connection to official House business. In his file, Letter enclosed a letter from Representative Zoe Lofgren (D-CA), the chairman of the House Management Committee, urging the Department of Justice to deny Brooks’ request for legal representation as well.

The double whiff of Brooks came on a day when emotions surrounding the January 6 attack were already high. Four hours of confirmation testimony from police officers injured during the attack — who demanded accountability from lawmakers and Trump allies who have said they bear responsibility for the violence — has brought the issue back to the top of the agenda in Washington. Trump himself made another public statement falsely claiming the left’s role in the riots and repeated his distorted claims that the 2020 election had been stolen from him.

In his court filing, Brooks argued that because his voters largely support Trump, speaking at a Trump rally could be construed as an “official” business.

“But Brooks’ reasoning goes too far,” the Justice Department said. “In his view, it is not clear what the limits of his legislative functions are; so long as he may indicate some desire in a part of his constituency, any electoral activity or purely election campaign is within the scope of his office or function and requires the United States to assume responsibility for Alleged malicious behaviour.

Department attorneys also said that if the allegations in the Swalwell case were true — that Brooks conspired and incited the rioters to attack the Capitol — it would be so inconsistent with his official obligations that he could not have acted as a legislator in doing so.

“It is clear that incitement to such an attack cannot fall within the scope of federal employment,” the Justice Department brief said. “Deliberate violent behavior to frustrate the interests of the employer cannot be within the scope of employment.”

The department’s attorneys did not support Swalwell’s allegations or provide an opinion on whether Brooks’ remarks alone could amount to what the law considers incitement. Despite the arrests of hundreds of participants in the January 6 riots, there has been little public indication that federal investigators are pursuing possible links between these rioters and members of Congress, their employees or Trump and his allies.

Trump’s lawyers moved to dismiss Swalwell’s case against him but did not file any petitions for the US government to take over his defense. His lawyers refused to explain their rationale.

Last month, the Justice Department angered some liberals and raised tensions with the White House by siding with the Trump administration’s decision to defend him against a lawsuit brought by Carroll, who alleges Trump raped her in the locker room decades ago. Carroll included the accusation in a 2019 book, and Trump criticized Carroll when asked about it in a subsequent interview. Trump’s comments prompted Carroll to sue.

Lawyers for the two administrations concluded that Trump’s statements denying her allegations were the result of questions posed to him as a result of his assumption of the presidency.

However, replacing the US government with a party in a civil suit could have far broader ramifications than just paying the legal bills. In many cases, such a substitution can terminate the lawsuit because the move leads to legal doctrines such as sovereign immunity. For legislators like Brooks, it would also include a speech or discussion clause in the Constitution, which generally provides significant protections against legal liability for things lawmakers do in the course of their actions.

While claims for injury and property damage due to the negligence of a government employee or official often proceed, those who claim injury or damages from intentional act are usually dismissed after US government intervention.

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