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DOJ Says It Won’t Defend Mo Brooks as Inciting Violence Isn’t an Official Duty

Brooks’s actions that day were campaign related and outside the scope of his duties as a congressman, the DOJ said.

Rep. Mo Brooks conducts a news conference in the Capitol Visitor Center on June 15, 2021.

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.”

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