An Alabama Republican congressman was told in stark terms that the Department of Justice (DOJ) would not help him in his attempts to avoid a lawsuit brought on by a Democratic lawmaker over his role in inciting loyalists of former President Donald Trump to attack the United States Capitol building on January 6, an event that resulted in five deaths and scores of injuries.
Rep. Mo Brooks (R-Alabama), who on that day told the mob of loyalists it was time to “start taking down names and kicking ass,” had requested the DOJ to come to his defense, claiming that he was shielded from a lawsuit filed by Rep. Eric Swalwell (D-California) under a 1988 law called the Westfall Act. According to the provisions of that law, federal employees cannot be sued for actions they engage in that are part of their jobs.
In a legal filing he made requesting the department’s help earlier this month, Brooks maintained he was acting in his role as a congressman when he gave his incendiary speech prior to the breach of the Capitol building. But on Tuesday, the DOJ dismissed that request, stating in its own filing that the rally put on by Trump and attended by Brooks was not part of his job duties.
“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 Justice Department said in its brief.
The DOJ went further, stipulating that “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.”
Use of the words “any federal employee” is possibly a signal that the DOJ will also refuse to help the former president if he makes a similar challenge, as it’s a “clear-as-day signal that Trump would also not be shielded” from Swalwell’s or anyone else’s lawsuits regarding the events of January 6, said Ryan Goodman, a former special counsel at the Department of Defense.
Anne Tindall, counsel for Protect Democracy, a nonpartisan organization representing two Capitol Police officers in a separate lawsuit against the former president over the attack on the Capitol, agreed. “Today’s actions strongly suggest that the Department of Justice will refuse to defend Trump’s action on January 6, as well,” she said.
Trump himself has not asked the Justice Department to act on his behalf, but has said that as president at the time he had (and continues to have) “absolute immunity” from this or any other lawsuit.
Swalwell’s lawsuit includes Brooks, Trump, Donald Trump Jr., and Trump’s former lawyer Rudy Giuliani as co-defendants, and alleges that they all played a part in riling up a crowd of Trump loyalists, some of whom attacked the Capitol building following a rally put on by the former president that day, in which he repeated false claims of election fraud leading to his loss in the 2020 presidential race.
The lawsuit suggests that comments by Trump and others leading up to that day were directly responsible for the attack on the Capitol building while members of Congress were certifying the election results.
“The peaceful transfer of power is a sacrament of American democracy,” Swalwell’s lawsuit states. The defendants “defiled that sacrament through a campaign of lies and incendiary rhetoric which led to the sacking of the United States Capitol on January 6, 2021.”
Truthout Is Preparing to Meet Trump’s Agenda With Resistance at Every Turn
Dear Truthout Community,
If you feel rage, despondency, confusion and deep fear today, you are not alone. We’re feeling it too. We are heartsick. Facing down Trump’s fascist agenda, we are desperately worried about the most vulnerable people among us, including our loved ones and everyone in the Truthout community, and our minds are racing a million miles a minute to try to map out all that needs to be done.
We must give ourselves space to grieve and feel our fear, feel our rage, and keep in the forefront of our mind the stark truth that millions of real human lives are on the line. And simultaneously, we’ve got to get to work, take stock of our resources, and prepare to throw ourselves full force into the movement.
Journalism is a linchpin of that movement. Even as we are reeling, we’re summoning up all the energy we can to face down what’s coming, because we know that one of the sharpest weapons against fascism is publishing the truth.
There are many terrifying planks to the Trump agenda, and we plan to devote ourselves to reporting thoroughly on each one and, crucially, covering the movements resisting them. We also recognize that Trump is a dire threat to journalism itself, and that we must take this seriously from the outset.
Last week, the four of us sat down to have some hard but necessary conversations about Truthout under a Trump presidency. How would we defend our publication from an avalanche of far right lawsuits that seek to bankrupt us? How would we keep our reporters safe if they need to cover outbreaks of political violence, or if they are targeted by authorities? How will we urgently produce the practical analysis, tools and movement coverage that you need right now — breaking through our normal routines to meet a terrifying moment in ways that best serve you?
It will be a tough, scary four years to produce social justice-driven journalism. We need to deliver news, strategy, liberatory ideas, tools and movement-sparking solutions with a force that we never have had to before. And at the same time, we desperately need to protect our ability to do so.
We know this is such a painful moment and donations may understandably be the last thing on your mind. But we must ask for your support, which is needed in a new and urgent way.
We promise we will kick into an even higher gear to give you truthful news that cuts against the disinformation and vitriol and hate and violence. We promise to publish analyses that will serve the needs of the movements we all rely on to survive the next four years, and even build for the future. We promise to be responsive, to recognize you as members of our community with a vital stake and voice in this work.
Please dig deep if you can, but a donation of any amount will be a truly meaningful and tangible action in this cataclysmic historical moment.
We’re with you. Let’s do all we can to move forward together.
With love, rage, and solidarity,
Maya, Negin, Saima, and Ziggy