Justice Department declines to represent GOP congressman in January 6 suit

Washington — The Justice Department on Tuesday rejected a request by Congressman Mo Brooks, a Republican from Alabama, to defend him in a civil lawsuit filed against him by fellow Congressman Eric Swalwell of California for his role in the January 6 assault on the U.S. Capitol.

In a filing with the federal district court in the District of Columbia, Justice Department officials said Brooks’ appearance at the January 6 rally outside the White House was “campaign activity” and argued inciting an attack on the Capitol, as alleged by Swalwell, falls outside the breadth of a lawmakers’ employment.

“[T]he complaint alleges that Brooks engaged in conduct that, if proven, would plainly fall outside the scope of employment for an officer or employee of the United States: conspiring to prevent the lawful certification of the 2020 election and to injure members of Congress and inciting the riot at the Capitol,” the Justice Department told the court. “Alleged action to attack Congress and disrupt its official functions is not conduct a member of Congress is employed to perform.”

The Alabama Republican, the department said, has not met the burden of demonstrating his conduct at the rally was done in his capacity as a member of Congress.

“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 officials argued. “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 conduct at issue here thus is not the kind a member of Congress holds office to perform.”

Brooks, along with former President Donald Trump, Donald Trump Jr. and lawyer Rudy Giuliani, were sued by Swalwell for their conduct on January 6. The California Democrat accused the four men of inciting the violence at the Capitol in violation of federal civil rights laws and D.C. statute.

The accusations against Brooks are based on a speech he gave during the event at the White House Ellipse, in which he falsely claimed the 2020 election was rigged against Mr. Trump and urged Congress not to reaffirm President Biden’s win. Swalwell alleges Brooks incited the violence at the Capitol, which occurred after he and Mr. Trump spoke, and encouraged the mob of the former president’s supporters to breach the building.

In response to the lawsuit, Brooks asked the department to certify that he was acting within the scope of his office with his speech, but it declined his request. If the department had found he was acting within the scope of his employment as a member of Congress, the United States could have been substituted as a defendant.

Prosecutors told the court that Brooks’ own account of his remarks at the rally demonstrate they were intended to affect the outcome of the 2020 election and future contests. Referencing Swalwell’s claims Brooks, together with Mr. Trump, Trump Jr. and Giuliani, conspired to block Congress from counting states’ electoral votes, the Justice Department said “such a conspiracy would clearly be outside the scope of the office of a member of Congress.”

“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” federal law,” the department told the court.

In addition to the Justice Department, the House of Representatives also declined to provide Brooks legal assistance, as the litigation was initiated by a current lawmaker individually against another in his personal capacity. 

Given that the suit “does not challenge any institutional action of the House or any of its component entities, the Office has determined that, in these circumstances, it is not appropriate for it to participate in the litigation,” Douglas Letter, the House’s general counsel, told the court.