The Department of Justice said Tuesday that Rep. Mo Brooks (R-Ala.) was not acting in the scope of his official duties as a congressman when he gave a speech to Donald Trump supporters on Jan. 6, saying the lawmaker is not protected by laws that shield members of Congress from legal action.
The determination comes amid a lawsuit filed this year by Rep. Eric Swalwell (D-Calif.) against Brooks, former President Trump and attorney Rudy Giuliani. The suit accuses the trio of inciting the deadly attack at the U.S. Capitol as Trump and his surrogates continued to spread lies that the 2020 presidential election had been stolen from him.
“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 agency wrote. Official later added: “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.”
Brooks had argued that he was acting in his duties as a congressman during the “Stop the Steal” rally and was therefore protected by the Westfall Act, which shields federal employees from lawsuits related to their work. The Justice Department’s decision means the federal government will not replace Brooks as the defendant in the suit, echoing a similar decision by the House of Representatives on Tuesday.
The New York Times notes the decision likely means the Justice Department could decline to provide protection to Trump in the lawsuit and force him to defend himself.
During his Jan. 6 speech, Brooks used inflammatory rhetoric as he told Trump supporters gathered near the White House to “start taking down names and kicking ass.”
“America does not need and cannot stand, cannot tolerate any more weakling, cowering, wimpy Republican congressmen and senators who covet the power and the prestige the swamp has to offer while groveling at the feet and the knees of the special interest group masters,” Brooks said at the rally. “As such, today is important in another way. Today is the day American patriots start taking down names and kicking ass.”
The Washington Post reported late Tuesday that Brooks believes the DOJ’s determination this week is wrong and that the courts will ultimately side with him, as he was “not advocating anyone do anything in any campaign.”
“If that is the standard, then everything that is done in Congress is campaigning because everything that is done in Congress affects campaigns,” he told the publication.
The case will eventually be decided by a judge or appeals court, the Post added.