Feds say they won’t defend Brooks in lawsuit over Capitol violence

Published 7:23 am Thursday, July 29, 2021

The U.S. Department of Justice won’t help defend U.S. Rep. Mo Brooks of Alabama against a civil lawsuit that claims he helped to incite the Jan. 6 violence at the Capitol.

In a court filing Tuesday, the Justice Department urged a judge to deny the congressman’s request for immunity as a federal employee over his remarks at a pro-Donald Trump rally that occurred before the rioting at the U.S. Capitol.

Brooks had argued that he was acting within the scope of his office when he spoke at a rally Jan. 6 and thus was due the legal protections afforded federal employees and members of Congress who are facing civil lawsuits over their jobs.

The Justice Department said the event was campaign-related and it would not certify that Brooks was acting in his official capacity.

“The record indicates that Brooks’ appearance at the January 6 rally was campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections,” Justice Department lawyers wrote.

Democratic Rep. Eric Swalwell of California, who served as a House manager in Donald Trump’s last impeachment trial, filed a lawsuit in March against the former president and others, including Brooks, whose actions he charges led to the Jan. 6 insurrection.

Brooks, now a candidate for U.S. Senate, has come under fire for telling the pro-Trump rally that preceded the Capitol riot that, “today is the day American patriots start taking down names and kicking ass.” Brooks has maintained his words were intended to fire up the crowd for the next election cycle.

“Anyone with a brain larger than a pea knew that I was not advocating violence,” Brooks told The Associated Press earlier this year.

According to court filings, Brooks had argued that his appearance at the rally was within the scope of his office or employment because it was about the upcoming certification vote. He also noted that his constituents overwhelmingly supported Trump in the 2020 election.

Federal law known as the Westfall Act authorizes the Justice Department to determine whether an employee was acting within the scope of their office or employment in an incident that is subject to a lawsuit claim. If the Justice Department certifies that the employee was doing so, the employee is dismissed and the action proceeds against the United States.

In rejecting Brooks’ request for certification, the Justice Department wrote, “it appears that the fundamental purpose of the rally was to advance the electoral success of a presidential candidate.”