WASHINGTON — The Justice Department won’t agree to take over Alabama Rep. Mo Brooks’ defense against claims that he incited the Jan. 6 insurrection at the US Capitol, making it increasingly likely that the Republican lawmaker will have to fend off a lawsuit on his own.
Brooks is being sued by one of his Democratic colleagues, Rep. Eric Swalwell, who accused Brooks of conspiring with former president Donald Trump and his longtime ally Rudy Giuliani to undermine the election results and incite the riots. Brooks had asked the court to certify that he was acting within the scope of his duties as a member of Congress, which would mean that the United States government would become the defendant in his place and he’d effectively be off the hook.
The judge has yet to rule on Brooks’ request, but the Justice Department filed a notice with the court on Tuesday night that they had refused to grant him the certification he wanted and would not take over his defense effort absent a court order. Lawyers for the department wrote that Brooks had made an “unprecedented” request for DOJ to defend him against claims related to campaign activity, which wasn’t the kind of official government business that would entitle a lawmaker or federal official to the legal protection of the US government.
“It is no part of the business of the United States to pick sides among candidates in federal elections,” wrote DOJ attorney Taheerah El-Amin.
Brooks’ petition would be notable under any circumstances, given how rare it is for members of Congress to sue one another. But the DOJ faced even greater scrutiny over how it would respond to Swalwell’s suit from Democrats disappointed by several recent decisions by the department under Attorney General Merrick Garland in cases with a connection to Trump. That was especially true after the department announced it would continue the previous administration’s effort to take over Trump’s defense against a defamation lawsuit filed by the writer E. Jean Carroll, who had accused Trump of raping her decades ago at a New York department store.
Brooks cited the Biden administration’s position in Carroll’s case in arguing that his case, too, should fall under a federal law that protects federal employees from being individually sued over actions they take as part of their work, known as the Westfall Act. But DOJ concluded that even if Brooks’ speech on Jan. 6 and his other activities around the election weren’t campaign-related, the Justice Department still wouldn’t step in because the conduct at the heart of the allegations — that he helped incite the insurrection — didn’t fall within what would be considered his normal duties as a member of Congress.
“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,” El-Amin wrote.
Brooks had been a prominent supporter of Trump’s efforts to promote the lie that the election had been fraudulent or stolen and spoke before Trump did at the main rally at the Ellipse in Washington on Jan. 6. He said it was a day when “American patriots start taking down names and kicking ass” and, invoking the legacy of “ancestors” who “sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives,” asked if rally attendees were “willing to do the same.”
The Justice Department argued that the court would first have to conclude that Brooks did not, in fact, conspire to undermine the election and incite the insurrection before certifying the case over to the DOJ.
Brooks will get a chance to respond to the Justice Department’s position; that filing is due by Aug. 10. A spokesperson for Brooks did not immediately return a request for comment.
The Justice Department acknowledged that the facts of the case were unusual in terms of how to define the speeches that Trump, Brooks, and others delivered on Jan. 6, when Congress met to certify the results of the Electoral College. Typically, El-Amin wrote, campaign activity takes place before an election. The rally on Jan. 6, though, was clearly directed at supporting Trump’s postelection efforts to stay in the White House, El-Amin wrote, and Brooks had even talked about how the outcome of 2020 would also affect campaigns in 2022 and 2024.
“But participating at a post-election rally that is paid for by a political campaign or its supporters, and that is concededly directed toward affecting the electoral outcome of a presidential election on behalf of a specific candidate or garnering support for the next election, is no less an electioneering or campaign activity,” the department argued.
El-Amin wrote that it was true that the Westfall Act didn’t insulate the federal government from defending bad acts — the department’s filing in E. Jean Carroll’s case made clear it wasn’t expressing approval of Trump’s allegedly defamatory remarks about Carroll even if it would defend against her lawsuit. However, El-Amin wrote, “violent conduct deliberately undertaken to thwart the employer’s interests cannot be within the scope of employment.”