Topline
The Department of Justice will not step in to replace Rep. Mo Brooks (R-Ala.) as defendant in a lawsuit filed by Rep. Eric Swalwell (D-Calif.) that seeks to hold the congressman and several other Trump allies responsible for the January riots at the U.S. Capitol, with the DOJ stating Tuesday that it determined that Brooks wasn’t acting in his official capacity when he gave a raucous speech before the riot.
Key Facts
Earlier this month, Brooks asked the DOJ to certify that his speech near the White House on Jan. 6 was within the scope of his office, a strategy that would have led to Brooks getting dismissed from Swalwell’s lawsuit and replaced as a defendant by the DOJ, which is normally responsible for defending the official conduct of federal employees in court.
The DOJ turned down this certification request in a Tuesday night court filing, arguing Brooks’ speech at a rally of Trump supporters that preceded the attack on the U.S. Capitol was effectively a campaign event, not a normal part of his job as a member of Congress.
Federal lawyers also said the allegations leveled against Brooks in Swalwell’s lawsuit — namely, that he conspired to stop Congress from certifying Joe Biden’s victory in the presidential election — don’t fall within the scope of his duties as a lawmaker.
Forbes has reached out to Brooks’ office for comment.
Crucial Quote
“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 DOJ wrote in its filing. “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.”
Key Background
During the White House rally, Brooks — who was one of the first lawmakers to support a longshot gambit to toss out Biden’s electoral college votes during Congress’ certification process — repeated Trump’s false allegations of voter fraud and urged supporters to “start taking down names and kicking ass.” In March, Swalwell filed a civil suit against Brooks as well as fellow rally speakers Trump, Rudy Giuliani and Donald Trump Jr., arguing the rowdy event was a deliberate attempt to incite a riot and interfere with Congress’ certification process that day.
Tangent
The U.S. House of Representatives’ general counsel also declined to defend Brooks on Tuesday, arguing the lawsuit “does not challenge any institutional action of the House or any of its component entities.”
Surprising Fact
Biden’s DOJ was also tasked with deciding whether to defend Trump in a separate lawsuit earlier this year, but the department sided with Trump in that case. E. Jean Carroll accused Trump of raping her more than two decades ago, and after Trump angrily called her a liar and said she was “not my type,” she sued the then-president for defamation. The Trump-era DOJ controversially asked to step in and replace Trump as a defendant last year, arguing Trump’s pugnacious denials were part of his official duties as president, and the Biden administration ultimately agreed to keep defending Trump in a court filing last month that acknowledged his comments were “crude and disrespectful.”
