Mo Brooks's Jan. 6 defense raises questions about official immunity and DOJ strategy

It takes no Sherlock Holmes to understand why Rep. Morris “Mo” Brooks (R-Ala.), the Trump acolyte running for Alabama’s open U.S. Senate seat, might want to avoid a District of Columbia jury as a civil trial defendant: Only one in 18 DC voters cast ballots for President TrumpDonald TrumpTrump takes shot at new GOP candidate in Ohio over Cleveland nickname GOP political operatives indicted over illegal campaign contribution from Russian national in 2016 On The Money — Dems dare GOP to vote for shutdown, default MORE in 2020.

But facing a D.C. jury is where Brooks potentially finds himself.

He and Trump were sued in March by 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.) for inciting the Jan. 6 insurrection. In Brooks’s pre-riot speech at Trump’s “Stop the Steal” rally that day, Brooks proclaimed: “Today is the day for American patriots to start taking down names and kicking ass.”

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On July 6, we learned how he will try to dodge a D.C. jury: He raised the same immunity defense to Swalwell’s suit as former Attorney General William BarrBill BarrBarr-Durham investigation again fails to produce a main event Virginia governor's race enters new phase as early voting begins Clinton lawyer's indictment reveals 'bag of tricks' MORE invoked last October to defend Trump in Jean Carroll’s defamation action.

Recall that in June 2019, Carroll’s memoir accused Trump of raping her in the 1990’s. Trump called her a liar, and Carroll sued him for defamation. Barr’s Justice Department then used the Federal Tort Claims Act (the “Westfall Act”) to claim that it immunized Trump because his statement was made “within the scope of his federal employment.”

Now Brooks has asserted the Westfall Act defense to Swalwell’s lawsuit.

Wait, you say. A politician is doing his job when he allegedly defames someone? Case law says — in some circumstances — yes.

But Brooks did not defame anyone; rather, he uttered fighting words. Can government officials committing misconduct other than defamation be “acting within the scope of their employment”?

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In 1994, when I was San Francisco’s chief assistant city attorney, the city’s police chief, Richard Hongisto, allegedly ordered subordinates to confiscate thousands of street copies of a gay newspaper whose cover cartoon portrayed the chief holding his baton in a lewd position. The paper sued, and a federal judge ruled that Hongisto was acting officially, so his employer, the city, was liable.

Hongisto had used his position of authority over others to commit the misdeed. That’s a major difference from Brooks’s case. Moreover, Trump’s Westfall Act immunity defense lost in New York’s federal district court back in October. (DOJ has appealed.)

In Swalwell’s suit, the problem for Brooks is this: D.C. courts hold that juries get to decide whether a government employee is performing his job responsibilities. There is one exception — where it’s indisputable that the employee was doing so.

It seems plausible that a jury could reasonably find that Brooks was acting outside his Congressional duties. The rioters who marched to the Capitol after Brooks’s Jan. 6 speech used violence in an attempt to interrupt the peaceful transfer of power. To keep the case from a jury, a judge would have to conclude that a reasonable juror could only decide that Brooks was following his Congressional oath to “support the Constitution” when he told his audience, just before the riot, to “kick ass.”

Brooks’s argument might be better if there were “overwhelming evidence” of voter fraud, as his legal motion asserts. If true, that assertion might support urging resistance to certifying President BidenJoe BidenHouse clears bill to provide veterans with cost-of-living adjustment On The Money — Dems dare GOP to vote for shutdown, default To reduce poverty, stop burdening the poor: What Joe Manchin gets wrong about the child tax credit MORE’s election. Unfortunately for Brooks, all 60-plus courts that considered Trump’s election contest lawsuits rejected the assertion.

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So, Brooks has a steep hill to climb.

To illustrate, in Uline v. Cashdan, an important D.C. precedent, a hockey player swung his stick at an opponent but injured a fan. The trial judge took away from the jury the issue of whether the assailant was acting like a hockey player and within the scope of his employment. But the appeals court disagreed, ruling that the judge should have let the jury decide if perhaps the player was acting for purely personal purposes like venting anger or spite.

And Brooks has another problem. The Westfall Act requires a Justice Department certification that the federal employee was acting within his job responsibilities. To date, there is no certification.

Some experts think that Attorney General Garland will issue one. After all, they point out, in Carroll’s New York case, he adopted Barr’s stance and appealed the ruling against Trump’s Westfall immunity defense.

But there are at least two key differences here. First, Garland likely felt an institutional obligation to continue a position he inherited from Barr. 

More importantly, an experienced prosecutor like Garland will not likely miss this point: Brooks’s dismissal motion argues that he was acting as a congressman because the White House asked him to speak at the Jan. 6 rally. That claim mirrors arrested insurrectionists’ defense that they rioted because Trump told them to.

How likely is the Attorney General to adopt a position in Brooks’s case that defense lawyers could cite against the DOJ in those prosecutions?

Brooks might be well advised to start preparing to be tried in D.C. by a jury of his peers.

Dennis Aftergut is a former federal prosecutor and chief assistant city attorney for San Francisco, now Of Counsel at the Renne Public Law Group.