The Justice Department (DOJ) Declined, on Tuesday, to Defend a Congressional Ally of Trump, in a Lawsuit accusing them Both of Inciting Supporters at a Rally in the hours before the Jan. 6 Storming of the Capitol.
DOJ Officials determined that, Rep. Mo Brooks (R-AL, 5th District), was acting Outside the Scope of his Duties, in an Incendiary Speech just before the Attack, according to a Court Filing. Brooks had asked the DOJ to Certify that he was acting as a Government Employee during the Rally. Had it Agreed to Defend him, he would have been Dismissed from the Lawsuit as a Defendant. “The record indicates that Brooks’s appearance at the Jan. 6 rally was campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections,” the Justice Department wrote. “Members of Congress are subject to a host of restrictions that carefully distinguish between their official functions, on the one hand, and campaign functions, on the other.”
The DOJ’s Decision shows it is likely to also Decline to provide Legal Protection for Trump in the Lawsuit. Legal Experts have closely watched the Case, because the DOJ has continued to Fight for Granting Immunity to Trump in a 2019 Defamation Lawsuit where he Denied allegations that he Raped the Writer, E. Jean Carroll, and said she Accused him to get Attention.
The Brooks Decision ran Counter to the DOJ’s longstanding broad view of Actions taken in the Scope of a Federal Employee’s Employment, which has served to make it Harder to use the Courts to hold Government Employees Accountable for Wrongdoing.
Lawyers for the House also said on Tuesday, that they Declined to Defend Brooks in the Lawsuit. Given that it “does not challenge any institutional action of the House,” a House Lawyer wrote in a Court Filing, “it is not appropriate for it to participate in the litigation.”
The DOJ and House filed their Briefs, on Tuesday, the Deadline set by Judge, Amit P. Mehta, of the Federal District Court for the District of Columbia. The Lawsuit, filed in March, by Rep. Eric Swalwell (D-CA, 15th District), accuses Brooks of Inciting a Riot and Conspiring to Prevent a Person from holding Office or Performing Official Duties.
Swalwell accused Brooks, Trump, his son Donald Trump Jr., and his Onetime Personal Lawyer, Rudolph W. Giuliani, of playing a Key Role in Inciting the Jan 6th Attack, during a Rally, near the White House, in the hours before the Storming of the Capitol.
Citing Excerpts from their Speeches, Swalwell accused the Men of Violating Federal Law by Conspiring to Prevent an Elected Official from Holding Office or from Performing Official Duties, arguing that their Speeches led Trump’s Supporters to believe they were acting on Orders to Attack the Capitol. Swalwell alleged that their Speeches encouraged Trump’s Supporters to Unlawfully force Members of Congress from their Chambers and Destroy Parts of the Capitol, to keep Lawmakers from Performing their Duties.
During the Rally, Brooks told Attendees that the U.S. was “at risk unlike it has been in decades, and perhaps centuries.” He said that their Ancestors “sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives” for the Country. “Are you willing to do the same?” he asked the Crowd. “Are you willing to do what it takes to fight for America?”
Swalwell said Defendants in his Lawsuit had Incited the Mob and had continued to Stoke False Beliefs that the Election was Stolen. “As 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 at the rally, a violent mob attacked the U.S. Capitol,” Swalwell said in his Complaint. “Many participants in the attack have since revealed that they were acting on what they believed to be former President Trump’s orders in service of their country.”
In June, Brooks asked that the DOJ Defend him in the Case. He cited the Westfall Act, which essentially Substitutes the DOJ as the Defendant when Federal Employees are Sued for Actions deemed within the scope of their Employment, according to a Court Document. He described his Speech on Jan. 6th as part of his Job, saying that his Duties include Delivering Speeches, making Pronouncements on Policy, and persuading Lawmakers. DOJ Rejected that Assertion.
“Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a representative — or any federal employee — and thus is not the sort of conduct for which the United States is properly substituted as a defendant under the Westfall Act,” DOJ wrote. “Brooks does not argue otherwise. Instead, he denies the complaint’s allegations that he conspired to incite the attack on the Capitol.”
Trump has Not sought to have the Government Substitute for him as a Defendant, in the Lawsuit, under the Westfall Act. But he has argued in Court Filings that the Statements he made on Jan. 6th are covered by Broad Immunity, that he could Not be Sued for making them, and that the Lawsuit Violated his Free Speech Rights.
Should a Judge Deny Trump’s Claims, he could ask the DOJ to Intervene on his behalf. But its Decision in Brooks’s Case lowered the chances that it would Comply.
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