WASHINGTON The Justice Department will not accept Alabama Rep. Mo Brook's defense against claims he incited Jan. 6th insurrection at Capitol. This makes it more likely that the Republican lawmaker will have his own lawsuit to defend himself.
One of his Democratic colleagues Eric Swalwell is suing Brooks. Swalwell accuses Brooks of conspiring to incite riots with Rudy Giuliani, a longtime ally of Trump, and to undermine the election results. Brooks asked the court for certification that he was acting within his duties as a member Congress. This would make the United States government the defendant and would effectively get Brooks off the hook.
Brooks' request has not been decided by the judge, but the Justice Department submitted a notice to the court Tuesday night stating that they have refused to give Brooks the certification he requested and will not take over his defense efforts unless a court order is issued. The department's lawyers wrote that Brooks had requested DOJ to defend him against claims relating to campaign activity. This was not the type of official government business that would give a federal official or lawmaker legal protection.
Taheerah El Amin, a DOJ attorney, stated that it is not the US's business to choose sides between candidates in federal elections.
Brooks' petition would be noteworthy in any circumstance, considering how rare it is for members to sue each other. The DOJ was also under intense scrutiny for its response in Swalwells' case. This was despite Democrats being disappointed at several recent decisions made by the department by Attorney General Merrick Garland in cases involving Trump. This was particularly true after the department said it would continue to defend Trump against a defamation suit brought by E. Jean Carroll, a writer who had accused Trump decades ago of raping her at a New York department shop.
Brooks referenced the Biden administration's position in Carrolls case to argue that his case should also be covered by a federal law known as the Westfall Act, which protects federal employees against being sued for actions they make as part of their work. DOJ ruled that Brooks' Jan. 6 speech and other activities surrounding the election were not campaign-related. However, the Justice Department would not intervene because his conduct inciting the insurrection was not within his normal duties as a member.
El-Amin stated that inciting or conspiring for a violent attack against the United States Congress is outside the scope of the employment of any Representative or federal employee.
Brooks was a vocal supporter of Trump's lies about the election. He spoke at the Ellipse rally in Washington before Trump on Jan. 6. Brooks stated that it was the day when American patriots begin to take down names and kick ass. He invoked the legacy of their ancestors who gave their blood, sweat, tears and sometimes even their lives and asked if rally participants would be willing to do the exact same.
The Justice Department claimed that before the Justice Department could certify it, the court must first conclude that Brooks didn't conspire to undermine the election or incite to insurrection.
Brooks will have the opportunity to respond to the position of Justice Departments; that filing is due Aug. 10. Brooks spokesperson did not immediately respond to a request for comment.
The Justice Department admitted that the facts of this case were unusual because of the way they defined the speeches that Trump, Brooks and others gave on Jan. 6, when Congress met in order to certify the results. El-Amin stated that campaign activity usually takes place before an election. El-Amin stated that the rally held Jan. 6 was clearly intended to support Trump's postelection efforts for staying in the White House. Brooks even spoke about how 2020's outcome would affect the campaigns in 2022 or 2024.
The department said that participation in a post-election rally paid for by a political party or its supporters and which is deemed to be directed towards influencing the electoral outcome for a presidential election for a candidate or garnering support the next election is not less electioneering or campaign activities.
El-Amin stated that while it was true that Westfall Act did not protect the federal government from defending bad actions, the Departments in E. Jean Carrolls case made it clear that they were not expressing support for Trumps allegedly defamatory comments about Carroll even if they would defend against her lawsuit. El-Amin stated that violent conduct intended to harm the employer's interests is not allowed within the scope for employment.