Brooks cited Trump's Westfall Act with Justice Department support to get federal representation in a defamation suit brought by E. Jean Carroll, a New York writer. This position has been maintained by the Biden administration.Brooks' case was rejected by the Justice Department because Brooks did not act in an official capacity. His remarks at Trumps rally were almost entirely politically motivated.According to a 29-page Justice Department filing, Tuesday's late Tuesday filing by civil attorneys, Brooks was able to show that the Jan 6 rally was campaign or electioneering activity that he would ordinarily have been presumed to have engaged in unofficially.Brooks is also accused of inciting violence against Capitol, which would be against his duties as a lawmaker.Doug Letter, House counsel, offered a similar rejection earlier in the day. He noted that the House rarely intervenes into legal disputes between lawmakers, especially when they are not related to official House business. Letter attached a letter from Rep. Zoe Lofgren, D-Calif., to his filing, asking the Justice Department not to grant Brooks request for legal counsel.Brooks' double-whiff came at a time when emotions were already high following the Jan. 6 attack. After four hours of riveting testimony by police officers who were injured during the attack, they demanded that lawmakers and Trump allies be held accountable for their actions. Trump made another public statement, falsely claiming a left-wing involvement in the riots. He also reiterated his discredit claims that the 2020 election had been stolen.Brooks claimed that speaking at Trump rallies could be considered official business, arguing that his constituents were overwhelmingly supportive of Trump.The Justice Department stated that Brooks' logic is too extreme. Brooks' view is that it is unclear what limits his legislative functions would have. As long as he can point to some desire in some part of his constituency for such an activity, any electioneering, or campaign activity would be covered by his office or employment, and the United States would be responsible for any tortious conduct.The department attorneys stated that, if Brooks is accused of conspiring with and instigating rioters against the Capitol, it would be such a violation of his official obligations that Brooks could not have been acting in the capacity as a lawmaker.According to the Justice Department brief, instigating such an attack clearly could not fall within federal employment. Employers cannot have violent conduct to undermine their interests.The Department did not support Swalwells claims nor offer any opinion as to whether Brooks comments could be considered instigation. There has been no public indication that federal investigators are looking into possible links between the Jan. 6 rioters and members or staff of Congress, Trump, or his allies, despite hundreds of arrests.Trump's lawyers moved to dismiss Swalwells case, but they have not filed any motions to have the U.S. government assume his defense. His lawyers declined to explain why.The Justice Department provoked anger from some liberals last month by supporting a Trump administration decision that defended him against a suit filed by Carroll. Carroll claims that Trump raped her in an old department store dressing room. This was many decades ago. Carroll made the accusation in a book published in 2019, and Trump was critical of Carroll when he asked about Carroll in a follow-up interview. Carroll filed suit after Trump's remarks.Both administrations' lawyers concluded that Trump's statements denying her claims were motivated by questions he was asked as a result his presidency.But, substituting the U.S. Government for a plaintiff in civil suits can have far more implications than who pays the legal bills. This substitution can often end a suit as it brings into play legal doctrines such as sovereign immunity. Brooks and other lawmakers would be protected from legal liability for acts they make in the course of their work by including the Constitutions Speech or Debate clause.Although suits for injuries or property damage caused by negligence of government workers or officials are common, claims for injury or damages resulting from intentional acts are often dismissed immediately after the U.S. government intervenes.
