The Department of Justice stated Tuesday that it would not protect Rep. Mo Brooks against Rep. Eric Swalwells suit against the fomenters of Jan. 6 Insurrection. It may be surprising that the DOJ's decision was made. After all, Attorney General Merrick Galrland has continued to defend Donald Trump against E. Jean Carrolls defamation suit, signalling a broad view on elected officials immunity from civil lawsuits. The Justice Department took notice of comments made by Brooks at the Jan. 6, rally. This was a demonstration that Brooks was not acting as an elected official but as a politician trying to influence future elections. Ironically, Brooks made these statements under oath in order to avoid this lawsuit. The legal defense of the congressman has become a legal liability.AdvertisementAdvertisementAdvertisementSwalwells' lawsuit is a serious effort by Brooks, Trump,and Rudy Giuliani to hold them accountable for their actions at the Jan. 6 rally. All three defendants were sued by him for civil rights violations and other garden-variety misdeeds, known as torts. Brooks claimed that he was guilty of torts such as negligence, aiding in the abetting common-law assault, intentional infliction or emotional distress, and other bias-related offenses. Brooks invoked the Westfall Act to dismiss these tort claims. A federal official can request the Department of Justice certification that they were acting within their job description when an alleged tort occurred. The DOJ will substitute the United States as defendant if they agree. The U.S. can't be sued for a broad range of torts so that substitution ends most cases.AdvertisementSubscribe to the Slatest Newsletter Get a daily email update with the latest stories. Signing you up was not possible due to an error Please try again. To use this form, please enable jаvascript. Email address: I would like to receive updates on Slate special offers. You agree to our Privacy Policy & Terms by signing up. Thank you for signing up! You can cancel your subscription at any time.Brooks requested the Justice Department to confirm that he was acting in the capacity of an employee of federal government and carrying out his official duties at Jan. 6 rally. This argument is difficult to swallow. It is also hard to swallow Trump's claim that E. Jean Carroll was being defamed was a presidential act. Yet, Garlands Justice Department supported his theory. Brooks' inadvertent admission on Jan. 6 that he was a campaigner and not a congressman seems to have made the case.AdvertisementThe claim that Brooks encouraged the crowd to attack the Capitol was the catalyst for this admission in Swalwells' lawsuit. Brooks spoke in a section that was central to Swalwells theory. Brooks declared: Today is when American patriots begin taking down names, and kicking asses! Brooks continued.AdvertisementOur ancestors gave their blood, sweat, tears, fortunes, lives and even their lives to create America, the greatest nation in history. Let me ask you a question: Would you be willing to do the exact same? Yes, I say. Louder! Do you have the courage to stand up for America? Louder! Are you ready to fight for America?Swalwells complaint mentioned Brooks' call to kick ass over and again. It is easy to understand why. In context, this language transcends partisan rhetoric and arguably crosses over into incitement to violence against members Congress who certified the election results.Brooks's narrative is perhaps the most self-destructive.Brooks attempted to reframe his call to start kicking ass with a lengthy, rambling statement.AdvertisementAdvertisementBrooks's narrative is perhaps the most self-destructive explanation Brooks can offer at this stage of litigation. In its Tuesday filing, the Justice Department stated that activities aimed at the success of a candidate in a partisan political office are not within the purview of the office or employment of a member of the House of Representatives.The Justice Department pointed out that Brooks admitted that one of his main aims in participating in the rally was influence over the 2022 and the 2024 elections.AdvertisementThe argument of the Justice Department is persuasive. Brooks' own affidavit submitted under penalty of perjury to the court supports this argument. He testified that he was running against candidates for the upcoming election. He acknowledged that he was campaigning against candidates in upcoming elections. According to multiple federal ethics regulations, politicians cannot engage in campaign activities as federal officials. Brooks lost immunity to Swalwells suit by trying to frame his comments more as a partisan battle cry than a call for violence.The Westfall Act could allow Brooks to be protected by U.S. District Judge Amit Pahta (the Barack Obama nominee) Mehta will likely accept the Justice Department's decision that the United States is not an appropriate defendant. After Brooks' malfeasance was defended by the agency, it would not be unusual for a court force the DOJ to enter into the dispute. He may still win the case. He has lost the fastest and easiest way to avoid liability. He is the only one responsible.
