The Department of Justice (DOJ) is facing a decision over whether to help insulate Rep. Mo BrooksMorris (Mo) Jackson BrooksWatchdog group seeks ethics probe over McCarthy's Jan. 6 comments Jan. 6 panel seeks records of those involved in 'Stop the Steal' rally Jan. 6 panel to ask for preservation of phone records of GOP lawmakers who participated in Trump rally: report MORE from a civil lawsuit claiming the Alabama Republican was among those responsible for inciting a mob to storm the Capitol on Jan. 6.
How the DOJ answers the legal argument from Brooks, who asked the agency to intervene in the case, could affect former President TrumpDonald TrumpOvernight Defense & National Security — The Pentagon's deadly mistake Overnight Energy & Environment — Presented by Climate Power — Interior returns BLM HQ to Washington France pulls ambassadors to US, Australia in protest of submarine deal MORE, who is a defendant in the same court battle. It could also affect how the department prosecutes hundreds of cases against the rioters themselves.
Brooks argues that he was acting in his official capacity when he spoke at the “Stop the Steal” rally and exhorted the crowd to start “kicking ass” over Trump's false claims of a stolen election.
If the DOJ agrees that the lawmaker was acting within the scope of his work as a congressman when he spoke to the crowd, Brooks could receive immunity from the civil suit over his alleged role in the riot. The department faces a July 27 deadline to answer his argument.
The prospect of the Justice Department providing legal cover for a Republican lawmaker accused of playing a role in starting the riot is already making some Trump critics uneasy.
Kristy Parker, who spent 15 years as an attorney in the department’s civil rights division, says she hopes the Biden DOJ will not sign off on Brooks’s argument but sees ominous signs in the agency’s recent trend of backing the previous administration’s claims in court combined with how it has historically interpreted scope-of-employment issues for government officials.
“I think they should find that Brooks is not within the scope of his employment when he is at a political rally with Trump, who in his capacity at that moment is not the president, but is actually a candidate at a campaign rally, talking about his failed candidacy and what he's doing is exhorting people to go and physically disrupt an official government proceeding,” said Parker, now an attorney at the nonprofit group Protect Democracy, which is representing two U.S. Capitol Police officers in a similar lawsuit against Trump.
“This is the time really to draw a line between what is your official job as an elected official and what is not, in that exhorting people to violently disrupt official proceedings and lying about the election is not part of your job,” Parker said. “So I hope that that's what they'll decide, but I am concerned because of the long term trend, that they might not decide it that way.”
Brooks’s office did not respond when asked for comment.
In March, Rep. Eric SwalwellEric Michael SwalwellOvernight Defense & National Security — Milley becomes lightning rod The Hill's Morning Report - Presented by National Industries for the Blind - Schumer: Dem unity will happen eventually; Newsom prevails How lawmakers aided the Afghan evacuation MORE (D-Calif.) sued Trump, Brooks and Trump's former attorney Rudy GiulianiRudy GiulianiRoger Stone served with Capitol riot lawsuit during radio interview FEC finds Twitter didn't break law by blocking spread of Hunter Biden story Juan Williams: The toxic legacy of Trump's corruption MORE over their comments at the rally and their baseless claims of election fraud in the weeks leading up to the attack on the Capitol, accusing them of inciting the riot and alleging violations of federal and D.C. law.
When asked for comment about the possibility of the DOJ backing Brooks, a spokesman for Swalwell referred The Hill to a Swalwell attorney, who did not respond when asked for comment.
Trump has not raised the same defense as Brooks, instead arguing that he is entitled to “absolute immunity” for conduct that took place while he was a sitting president, especially when the alleged conduct involved political speeches and messaging.
“Never would more be at stake than here when the very issue is the propriety of the speech of the then-President of the United States,” Trump’s lawyers argued in a brief in May. “Indeed, a political speech by the President is not at the ‘outer perimeter’ of his duties—it is at the dead center.”
While Trump has not yet explicitly raised the scope-of-employment argument in the case, he could try to in the future and has invoked it in other cases.
When the writer E. Jean Carroll sued Trump for defamation in 2019 over his public response to her allegation that he had raped her in a New York City department store in the '90s, Trump argued in court that the comments about her in statements to the press were in his official capacity as president.
The legal implications of the argument meant that Trump was entitled to be represented by Justice Department lawyers and that he would be immune to any civil claims in court.
The DOJ under the Trump administration agreed and moved to defend the then-president in the case even though it was filed against him in his personal capacity, setting off a firestorm of controversy.
The Biden DOJ became embroiled in the dispute last month, when it sided with Trump in an appeal over a district judge’s rejection of his arguments.
The law at issue, known as the Westfall Act, shields government employees from most civil suits over conduct that’s part of their normal duties in the course of their job. Both Brooks and Trump have argued that delivering speeches or speaking with the press falls squarely in that protected sphere.
Paul Figley, a law professor at American University who spent three decades working at the Justice Department, including 15 years as the deputy director of the unit tasked with handling such claims from government employees, says that Brooks is likely correct in saying that he’s covered by the law and that in normal circumstances the DOJ would almost certainly sign off on it.
“Looking at the [past] cases, I think it's pretty clear that that will be held to be within the scope of employment,” Figley said.
He added that the same would likely be true for Trump if the former president decides to invoke the law as well.
“The government's long-term interests are in having a consistent jurisprudence,” Figley said. “And it can't be that you pick and choose whether the president is within the scope of employment or not, depending on what you think of his or her politics. By and large, almost anything the president does is likely to be held within the scope of employment, because the president is a full-time job.”
But Parker argues that if the department applies its normal interpretation of the law in this case, it could have awkward implications for the hundreds of federal criminal prosecutions against Capitol rioters that Attorney General Merrick GarlandMerrick GarlandGrassley calls for federal prosecutor to probe botched FBI Nassar investigation Durham seeking indictment of lawyer with ties to Democrats: reports Woman allegedly abused by Nassar after he was reported to FBI: 'I should not be here' MORE has named as one of his top priorities.
“What would likely happen here is defense attorneys who've already raised this kind of a defense as an issue would absolutely file motions, based on the department saying that Brooks or that Trump were acting within the scope of their employment, which makes their clients arguments that they were acting with their permission sound more reasonable,” Parker said.
She added that the problem would be magnified if the department doesn’t go after any political leaders, like Trump, who may have played a role in inciting the riot.
“I know, from my own experience, when you have cases where there are very powerful people who are not sitting at the defense table, who the jury believes could or should be held responsible for what the less powerful people who are being prosecuted did — there are jurors who don't like that, don't think that it's fair. And it only takes one to wreck a prosecution,” Parker said.