Justice Department leaves Rep. Mo Brooks on his own in Jan. 6 lawsuit

House General Counsel's Office also declines to take a side in member vs. member litigation

Rep. Mo Brooks, here talking with Capitol Police, won't get the backing of the Justice Department or House lawyers in his bid to be removed from a lawsuit related to the Jan. 6 mob attack on the Capitol. (Tom Williams/CQ Roll Call file photo)
Rep. Mo Brooks, here talking with Capitol Police, won't get the backing of the Justice Department or House lawyers in his bid to be removed from a lawsuit related to the Jan. 6 mob attack on the Capitol. (Tom Williams/CQ Roll Call file photo)
Posted July 28, 2021 at 12:19pm

Alabama Republican Rep. Mo Brooks will have a lonely fight to get legal protection from California Democratic Rep. Eric Swalwell’s lawsuit over the Jan. 6 mob attack on the Capitol, now that government lawyers have declined to back Brooks.

The House General Counsel’s Office told a federal judge that it was not appropriate for House lawyers to weigh in on whether Brooks should be removed from the lawsuit stemming from his claim that he was acting within the scope of his employment as a member of Congress.

That’s because the litigation pits one current member of Congress against another as individuals and “does not challenge any institutional action of the House or any of its component entities,” House General Counsel Doug Letter wrote in a court filing on Tuesday.

And the Justice Department took a harder and more judgmental line later Tuesday when it declined to certify that Brooks had been acting within his official role as a member of Congress when he spoke at a rally ahead of the attack.

“Brooks cannot show that his actions in inciting a deadly riot were somehow within the scope of his federal employment,” the Justice Department wrote.

Brooks, who has filed his own responses in Swalwell’s lawsuit, has until Aug. 10 to file a response to the House General Counsel’s Office and the Justice Department.

Swalwell filed a lawsuit in March that accuses Brooks, former President Donald Trump and others of directly inciting the attack on the Capitol. It describes how Brooks promoted and spoke at the rally near the Washington Monument before the attack.

A federal judge will ultimately decide whether Brooks qualifies for a federal law that essentially gives immunity to government employees or officials on claims for negligent or wrongful acts when acting within the scope of their official duties.

The statute allows members of Congress to have the United States substituted as the defendant in such a suit, and the government, not the lawmaker, bears any resulting liability.

The House generally has a strong institutional interest in defending its traditionally broad view of what counts as a member acting within the scope of their office. The House General Counsel’s Office, under control of the Democrats because they have a majority, had not weighed in on the member vs. member lawsuit.

The office kept that stance Tuesday even when the judge asked them to weigh in. Letter pointed to the same stance in a 2007 lawsuit, when then-Rep. John A. Boehner, R-Ohio, sued Rep. James McDermott, D-Wash., for disclosing to reporters a recording of a conference call with Republican leadership that a couple in Florida had intercepted on a police scanner radio.

The Justice Department based its stance in the Brooks case in part on a letter from California Democratic Rep. Zoe Lofgren, the chair of the House Administration Committee, that states that Brooks undercut his own case for protections.

“Essentially, in deflecting the allegation that his speech was an incitement to violence, Representative Brooks has sworn under oath to the court that his conduct was instead in furtherance of political campaigns,” Lofgren wrote to the DOJ.

Standards of conduct for members and House precedent “are clear that campaign activity is outside the scope of official duties and not a permissible use of official resources,” Lofgren wrote.

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 was the business before Congress on the day of the Jan. 6 attack.

The courts could decide that Brooks’ speech that day falls under the scope of official activities, such as communicating with the public on matters of public concern.

Brooks was among the 147 Republican members of Congress who voted to reject votes from at least one state in the hours after the Trump-inspired mob’s attack delayed the process of counting electoral votes to determine the outcome of the 2020 presidential election.

The Justice Department, in its filing, argues in part that the law that governs how Congress counts electoral votes does not give Brooks a right to challenge state results.

“In other words, Congressman Brooks was not authorized by the ECA to reject votes based on his purported belief that certain states’ results were unreliable or fraudulent,” the Justice Department wrote. “That statute, then, cannot salvage any of Brooks’ relevant conduct as the type he is employed to perform.”