The House General Counsel’s Office likely could douse the fiery legal clash between California Democratic Rep. Eric Swalwell and Alabama Republican Rep. Mo Brooks over the Jan. 6 insurrection, veterans of that office say.
Swalwell filed a lawsuit in March that accuses Brooks, former President Donald Trump and others of directly inciting the attack at the Capitol. It describes how Brooks promoted and spoke at the rally near the Washington Monument that preceded the attack.
Brooks has argued that the court should remove him as a defendant from the lawsuit because he was acting within the scope of his employment as a member of Congress — a legal protection House members and staff traditionally rely on to do their jobs.
Now, a federal judge has asked the House General Counsel’s Office to weigh in on that part of the unusual member vs. member litigation, which already has generated inflammatory rhetoric on even typically routine issues, such as finding Brooks to serve him with the lawsuit.
The office, under control of the Democrats because they have a majority, provides legal advice and assistance for members of both parties on a day-to-day basis. So far it has stayed out of the Swalwell-Brooks fray.
The question at hand now is whether Brooks qualifies for a federal law that essentially gives immunity to government employees or officials on claims for negligent or wrongful acts — as long as they were acting within the scope of their official duties.
The statute, the Federal Tort Claims Act, substitutes the United States as the defendant in such a suit and the government — not the individual employee — bears any resulting liability, according to the House’s explanation of the law on its website.
The decision of whether to let Brooks off as a defendant could come down to the response to the court from Douglas Letter, a veteran litigator who became general counsel in 2019 and waged numerous battles with the Trump administration over the scope of congressional power.
While supporting Brooks could rile partisan Democrats, former general counsels to the House said there is a strong institutional interest in defending its traditionally broad view of what counts as a member acting within the scope of their office.
That’s particularly the case here, where “it appears that there will be a judicial ruling on the question that could have an impact on future cases as well,” said Thomas Hungar, a former House general counsel now at Gibson Dunn law firm.
Brooks, in a petition he filed himself, points out that his tweets and his speech at the rally centered on the contested presidential election and whether to certify the state electoral counts, which members of Congress vote on and did so later on Jan. 6.
“I can't imagine the House counsel repudiating that contention, even though they didn’t enter the case until they were asked to,” said Stan Brand, a former House general counsel now at Brand Woodward Law. “I think that was their sort of way of trying to sidestep a controversy.”
Brooks, to back his petition, told the federal court that his tweets were done on his official member account, he prepared the rally speech in his congressional office, and he represents constituents who “overwhelmingly” preferred that Trump remain president and support his conduct.
Swalwell, in the original lawsuit, says Brooks was “acting in his personal capacity.”
Traditionally broad protections
House members sometimes generate lawsuits when they do a wide range of activities to further their responsibilities as elected officials, such as communicating with constituents, or speaking with the media or the public about matters of public concern, Hungar said.
“The General Counsel’s Office has traditionally sought to ensure that the provisions of federal law designed to protect federal officers and employees from suit based on their official acts are fully available to House members and staff, since any other approach would make it prohibitively risky and expensive for them to be able to do their jobs,” Hungar said.
To the extent Brooks’ conduct is plausibly viewed as falling under the scope of official activities, such as communicating with the public on matters of public concern, past practice and institutional interests would suggest that it would be appropriate for the House general counsel’s office to support legal protection for Brooks, Hungar said.
But if Brooks’ actions were purely private or campaign-related activities, support for Brooks would not be appropriate, Hungar said.
Brand said the House general counsel’s office has to be even-handed, so it is “pretty much bound” to back legal protections for Brooks.
“You can’t undermine the credibility you have with courts by taking arbitrary positions based on who’s saying it and why,” Brand said.
Still, as with so many events stemming from the Trump administration, there is no precedent for the general counsel’s office to refer to when it comes to protections for a member speaking about electoral votes at a political rally hours before rioters invade the Senate and House chambers trying to force the counting of electoral votes the way they want, as opposed to using the election results.
Politics in play
The case has a lot of political context. Swalwell is a close ally of Speaker Nancy Pelosi and is part of House Democratic leadership. He was also an impeachment manager during the Senate trial against Trump on a charge of incitement of insurrection. Brooks is seeking the GOP nomination for an open seat in the Senate and still contends Trump won the election and should be serving as president. Trump has said Brooks “has my complete and total endorsement” in his Senate bid.
Michael Stern, a lawyer formerly in the House counsel’s office, said that responding to Brooks’ petition will be tricky for the general counsel’s office because there are “some countervailing pressures here.”
The office will certainly take the position that Brooks is an employee, but whether Brooks’ acts were part of his official duties “is going to be a more difficult question, I suspect.”
The Justice Department drew controversy last month when it continued to back Trump in a defamation lawsuit brought by writer E. Jean Carroll, who accused the former president of sexually assaulting her decades before his election to the White House.
Carroll filed the suit after Trump denied the allegations, but the Justice Department said the federal government should be the defendant in the case instead of Trump because he was a government employee and he made the comments as part of his official duties.
Stern has tracked other times the law has come into play in lawsuits against members of Congress, including then-South Dakota Rep. William Janklow. The Republican was convicted of reckless driving and manslaughter when he ran a stop sign and sped when he hit and killed a motorcyclist in 2003.
After Janklow’s conviction, the motorcylist’s family sued for damages. But a court upheld the Justice Department’s certification that Janklow was acting within the scope of his employment because he was returning from a ceremony honoring Korean war veterans that was congressional business — and that a member of Congress serving a vast and rural district such as South Dakota would drive a car to commute between his office and constituent meetings.
“Had Janklow been returning from a political fundraiser or campaign event, however, the result would likely have been different,” Stern wrote.