By Marshall Cohen and Tierney Sneed, CNN
The Justice Department on Tuesday rejected a request from GOP Rep. Mo Brooks to protect him from a civil lawsuit against him and former President Donald Trump concerning the January 6 insurrection.
The lawsuit was brought earlier this year by Democratic Rep. Eric Swalwell of California. Brooks, an Alabama Republican, had asked the Justice Department to tell a federal court that he was acting as a government employee when he spoke at a Trump rally before the attack. If he were acting in his official capacity, he would be dropped as a defendant and replaced by the US government.
But in a court filing Tuesday, the department refused to take that step.
“The United States hereby reports that the Department has declined to issue a certification because it cannot conclude that Brooks was acting within the scope of his office or employment as a Member of Congress at the time of the incident out of which the claims in this case arose,” the Justice Department wrote in a filing. “In light of the Department’s declination, the United States should not be substituted as a defendant in this action.”
The Justice Department ultimately concluded that Brooks’ activities at the rally were political in nature — pro-Trump electioneering — and thus not part of his official responsibilities.
“The record indicates that Brooks’s appearance at the January 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 filing said, adding that federal courts have “routinely rejected claims that campaigning and electioneering” are part of lawmakers’ official duties.
They later said, “Members (of Congress) run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.”
The rally that Brooks, Trump and others attended on January 6 was organized by a pro-Trump nonprofit organization, similar to a super PAC but registered with the IRS instead of the Federal Election Commission.
“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,” the Justice Department said, referring to the civil claims against Brooks spelled out in the lawsuit, which he denies.
The final decision is still up to federal Judge Amit Mehta of the DC District Court, but the burden now solely falls on Brooks to convince Mehta that he was acting in his official capacity.
The Justice Department clearly stated that it views the January 6 rally as a purely political event, and also that it’s under no obligation to protect federal employees who try to attack the US government. This could influence how this and other civil lawsuits play out for Trump, who is a defendant in several cases and explicitly urged supporters at the rally to march on the Capitol.
All of the defendants, including Trump, deny wrongdoing.
House also declines to defend Brooks
Separately, the Democratic-run House of Representatives said earlier Tuesday that it doesn’t want to defend Brooks in Swalwell’s suit. Lawyers from the House’s general counsel told a judge that “the Office has determined that, in these circumstances, it is not appropriate for it to participate in the litigation.”
The House lawyers’ three-page filing said this position was the same they had taken with previous lawsuits in which one member sued another.
After serving as one of the House managers for Trump’s second impeachment trial, Swalwell filed his civil lawsuit in March against Brooks, Trump, his longtime attorney Rudy Giuliani and his eldest son, Donald Trump Jr. At its core, the suit claims the defendants conspired to incite the January 6 insurrection, violating civil rights laws and anti-terrorism laws in the process.
Brooks, who had asked the court to certify that he was acting in the scope of his government employment, argued he should be dismissed as a defendant and replaced by the US government because he was acting as a federal employee at all times.
Legal observers had waited anxiously to see how the Justice Department under Attorney General Merrick Garland would handle Brooks’ attempt to be dismissed from the lawsuit. Some Trump critics — from both political parties — had urged Garland to reject Brooks’ request and set a precedent that could influence similar civil lawsuits against Trump and his senior advisers.
This is one of a few insurrection-related civil lawsuits targeting Trump and his allies. A group of House Democrats filed a similar case. Police officers who were injured defending the Capitol also brought a lawsuit, all trying to hold Trump legally responsible for causing the deadly riot.
Swalwell’s lawsuit focused on two aspects of Brooks’ conduct in the lead-up to and on the morning of January 6: several tweets in which Brooks said Congress shouldn’t certify Joe Biden’s 2020 win and the speech he gave at the Ellipse rally, hours before the attendees mobbed the Capitol.
In that speech, Brooks told the crowd: “Today is the day American patriots start taking down names and kicking a**!”
“Now, our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives, to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you: Are you willing to do the same?” he said.
Brooks noted in court documents that the tweets were sent from his government account and had been drafted by government employees — either himself or his congressional staff. He said that a White House staffer had invited him to speak at the rally and that the White House had worked the logistical details with his congressional staff.
“Brooks only gave an Ellipse Speech because the White House asked him to, in his capacity as a United States Congressman, speak at the Ellipse Rally. But for the White House request, Brooks would not have appeared at the Ellipse Rally,” the congressman said in the petition.
But Swalwell alleged in the lawsuit that Brooks “intended these words as a threat of violence or intimidation to block the certification vote from even occurring and/or to coerce members of Congress to disregard the results of the election.”
The case already has seen unexpected twists and turns. Swalwell hired a private investigator to track down Brooks and serve the lawsuit. When the investigator dropped off the papers at Brooks’ family home, the Republican cried foul and claimed that his wife had been accosted.
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