WASHINGTON – The Justice Department declined Tuesday to defend a congressional ally of former President Donald J. Trump in a lawsuit accusing both of them of rallying supporters in the hours leading up to the January 6 storm of the Capitol to have instigated.
Law enforcement officials determined that Alabama Republican Representative Mo Brooks, in an incendiary speech shortly before the attack, acted outside his mandate, according to a court file. Mr. Brooks had asked the Department to confirm that he was acting as a government employee during the rally; Had they agreed to defend him, he would have been dismissed from the lawsuit and the United States would have been represented as a defendant.
“The records indicate that Brooks ‘appearance at the January 6 rally was campaign activity and it is not part of the United States’ business to choose between candidates in the federal election,” the Justice Department wrote.
“Members of Congress are subject to a variety of restrictions that carefully distinguish between their official functions on the one hand and campaign functions on the other.”
The Justice Department’s decision shows that it is also likely to refuse to provide legal protection to Mr Trump in the lawsuit. Legal experts have been closely monitoring the case because the Biden Justice Department continued to fight to grant immunity to Mr Trump in a 2019 defamation lawsuit in which he denied allegations of raping writer E. Jean Carroll and said he accused her him to attract attention.
Such substitution provides full protection for government officials and is generally reserved for government employees who are being sued for acts arising out of their work. In the Carroll case, the Department cited other defamation lawsuits as precedent.
The Brooks decision also contradicted the Justice Department’s long-standing broad view of actions taken in the context of the employment of a federal employee, which has made it difficult to use the courts to hold government employees accountable for wrongdoing.
House attorneys also said Tuesday that they refused to defend Mr. Brooks on the lawsuit. Since it “does not question institutional actions by the House of Representatives,” a House attorney wrote in a court filing, “it is not appropriate for it to participate in the lawsuit.”
The Justice Department and the House filed their pleadings Tuesday, the deadline set by Judge Amit P. Mehta of the District Court for the District of Columbia. The lawsuit, filed in March by Rep. Eric Swalwell, a Democrat of California, accuses Mr. Brooks of inciting a riot and preventing a person from holding office or performing official duties.
Mr. Swalwell accused Mr. Brooks, Mr. Trump, his son Donald Trump Jr. and his former personal attorney Rudolph W. Giuliani of key roles in instigating the January 6 attack during a rally near the White House in the Having played Storming the Capitol hours earlier.
Citing excerpts from their speeches, Mr Swalwell accused the men of breaking federal law by conspiring to prevent an elected official from holding office or performing official duties, arguing that their speeches attracted supporters led Mr. Trump to believe that they were acting on orders to attack the Capitol.
Mr Swalwell alleged that their speeches encouraged Mr Trump’s supporters to unlawfully force members of Congress out of their chambers and destroy parts of the Capitol to deter lawmakers from performing their duties.
During the rally, Mr. Brooks told attendees that the United States is “at risk unlike in decades and perhaps centuries.” He said that their ancestors sacrificed “their blood, sweat, tears, wealth, and sometimes their lives” for the land.
“Are you ready to do the same?” He asked the crowd. “Are you ready to do anything to fight for America?”
Mr Swalwell said the defendants in his lawsuit incited the mob and continued to generate false beliefs that the election had been stolen.
“As a direct and predictable consequence of the defendants ‘false and inflammatory allegations of fraud and theft, and in direct response to the defendants’ explicit calls for violence at the rally, a violent mob attacked the US Capitol,” Swalwell said in his complaint. “Many participants in the attack have since revealed that they were acting on the orders of former President Trump in the service of their country.”
In June, Mr. Brooks asked the Justice Department to defend him on the case. He cited the Westfall Act, which essentially replaces the Justice Department as a defendant when federal employees are sued for acts in the course of their employment, a court document said.
Describing his January 6 speech as part of his job, he said his responsibilities include making speeches, making policy statements and convincing lawmakers.
Mr Trump has not sought the government to replace him as a defendant in the Westfall Act lawsuit. But he has argued in court records that the statements he made on Jan. 6 are backed by broad immunity, that he could not be sued for it, and that the lawsuit violates his right to freedom of expression.
Should a judge deny Mr. Trump’s allegations, he could ask the Justice Department to intervene on his behalf. But its decision in Mr. Brooks’ case reduced the chances that it will comply.
