The United States Department of Justice said Tuesday in a court filing that Representative Mo Brooks (R-AL) may be sued because he is not covered by federal protections for his speech on January 6th.
Representative Brooks argued that he is effectively immune from a lawsuit filed by fellow Congressman, Representative Eric Swalwell (D-CA), which accused Brooks, former President Donald Trump, and others of provoking the attack on the Capitol. Past court opinions and Justice Department legal interpretations have given broad safeguards to protect elected officials who are sued over their public statements, but the Department of Justice claims that Brooks went too far.
The agency “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 court filing said. “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 Department of Justice’s legal argument concluded that Brook’s appearance at the political rally outside the White House before the riot “was campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections.” The issue will ultimately be decided by a judge or appeals court.
During a speech at the rally, Brooks told the crowd to “start taking down names and kicking ass.” He also asked, “Are you willing to do what it takes to fight for America?” He argued his words were part of his job as a representative of a district where 64% of the vote in the 2020 election was for Donald Trump over Joe Biden.
Brooks says he has immunity from the lawsuit because his action was taken within the scope of his job. Swalwell, who sued Brooks in a D.C. federal court, argued that the Congressman was operating “in his personal capacity for his own benefit” at the rally. Philip Andonian, a lawyer for Swalwell, said he “could not agree more” with the department’s analysis, Tuesday night.
“Not only did Mo Brooks engage in unprotected campaign activity on January 6 — which his own filing makes clear — he conspired to interfere with Congress and incited a deadly insurrection that struck the very core of our democracy,” Andonian said. Brooks said the department’s reasoning was wrong because “the law is very broad,” adding that he believes the courts will eventually side with him. “I was not advocating anyone do anything in any campaign,” Brooks said. “If that is the standard, then everything that is done in Congress is campaigning because everything that is done in Congress affects campaigns.”
In the Swalwell lawsuit against former President Donald Trump, Trump’s attorneys said in a footnote that he is covered by the Westfall Act, but their main argument is that Trump has immunity from civil lawsuits over his actions as President. Trump’s attorneys also said the lawsuit improperly invites the federal courts “to make a determination about what is or is not proper for the president to say at a political speech advocating for governmental action.”
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