DOJ declines to back Mo Brooks's defense against Swalwell's riot lawsuit

The Department of Justice (DOJ) on Tuesday declined to back a Republican lawmaker's legal defense against a lawsuit accusing him of helping to foment the Jan. 6 Capitol riot.

DOJ lawyers said in a court filing that they were declining to certify 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's (R-Ala.) claim that he was acting within the scope of his official duties as a member of Congress when he delivered a speech to Trump supporters at the Jan. 6 "Stop the Steal" rally.

"The record indicates that Brooks’s 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," the filing reads.

Brooks has argued that his conduct at the center of the case falls squarely within his scope of official employment and is thus legally protected from such civil suits.

"In sum and substance, Brooks drafted, practiced and gave his Ellipse Rally Speech at the request of the White House and pursuant to Brooks’ duties and job as a congressman concerning presidential election dispute resolution obligations imposed on Congress by the U.S. Constitution," Brooks wrote in a court filing earlier this month.
 
The lawsuit was filed earlier this year 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.) against Brooks, former President TrumpDonald TrumpUN meeting with US, France canceled over scheduling issue Trump sues NYT, Mary Trump over story on tax history McConnell, Shelby offer government funding bill without debt ceiling MORE and Rudy GiulianiRudy GiulianiEric Trump lawyer in New York attorney general's fraud case quits Trump campaign knew soon after election that voting machine claims were false: report Trump lawyer offered six-point plan for Pence to overturn election: book MORE, accusing them of inciting the riot that overran the Capitol.
 
Had the DOJ agreed with Brooks and convinced a court that he was acting within his official duties, the Alabama Republican would have effectively been immune from the lawsuit.
 
Trump critics had worried in the weeks leading up to the DOJ's Tuesday deadline that the department would endorse Brooks's argument and insulate him from accountability for what they see as incitement. 
 
But in a 30-page filing Tuesday night, the DOJ roundly rejected Brooks's arguments.
 
"Indeed, although the scope of employment related to the duties of a Member of Congress is undoubtedly broad and there are some activities that cannot be neatly cleaved into official and personal categories, Brooks’s request for certification and substitution of the United States for campaign-related conduct appears to be unprecedented," the filing reads. "And in a variety of contexts involving state and local elected officials, courts have routinely rejected claims that campaigning and electioneering activities fall within the scope of official employment."
 
One section of the legal brief has a heading that reads, "Instigating an attack on the United States Capitol would not be within the scope of a Member of Congress’s employment."
 
A spokesman for Brooks did not immediately respond when asked for comment.