Brooks cited the Westfall Act, which Trump himself had previously invoked during his presidency, with Justice Department backing, to secure federal representation in a libel suit brought by New York writer E. Jean Carroll . The Biden administration has maintained this position.
But in Brooks’ case, the Justice Department rejected the idea that he was acting officially, noting that his remarks at the Trump rally were almost entirely political.
“The record indicates that the Jan. 6 rally was an election or campaign activity that Brooks would normally be presumed to have undertaken in an informal capacity,” Civilian Justice Department prosecutors said Tuesday evening in a 29-page filing.
In addition, Brooks is accused of instigating violence against the Capitol, which would be contrary to his duties as a legislator.
Earlier today, House Counsel Doug Letter offered a similar rejection, noting that the House rarely intervenes in legal disputes between individual lawmakers, especially when they are not related to the official business of bedroom. In his case, Letter attached a letter from Rep. Zoe Lofgren (D-Calif.), Chair of the House administration committee, urging the Justice Department to deny Brooks’ request for legal representation as well.
Brooks’ double puff came on a day when the emotions surrounding the Jan.6 attack were already at their peak. Four hours of gripping testimony from police officers injured in the assault – they have held lawmakers and Trump allies to account who they say bear responsibility for the violence – brought the issue to the fore. day in Washington. Trump himself made another public statement falsely claiming a left-wing role in the riots and reiterated his discredited claims that the 2020 election was stolen from him.
In his court record, Brooks had argued that, since his constituents largely supported Trump, speaking at a Trump rally could be interpreted as an “official” matter.
“But Brooks’ logic goes too far,” the Justice Department said. “According to him, it is not clear what limit there would be to his legislative functions; As long as he could signal a desire in part of his constituency, any purely electoral or campaign activity would fall within his mandate or employment and would require the United States to take responsibility for any alleged tortious behavior.
Lawyers for the department also said that if the allegations in Swalwell’s trial were true – that Brooks had conspired and instigated rioters to attack the Capitol – it would be so contrary to his official obligations that he could not have act as a legislator in doing so.
“The instigation of such an attack clearly could not fall within the scope of federal employment,” said the brief from the Department of Justice. “Violent behavior deliberately undertaken to thwart the interests of the employer cannot be part of the employment. “
Lawyers for the ministry have not endorsed Swalwell’s claims or given an opinion on whether Brooks’ remarks alone could constitute what the law would consider instigation. Despite hundreds of arrests of participants in the January 6 riot, there has been little public indication that federal investigators are looking for potential links between these rioters and members of Congress, their staff, or Trump and his allies.
Trump’s lawyers have decided to dismiss the Swalwell case against him, but have not filed any requests for the US government to take over his defense. His lawyers refused to explain their reasoning.
Last month, the Justice Department angered some liberals and created tensions with the White House by sticking to a decision by the Trump administration to defend it against the complaint filed by Carroll, who claims Trump raped her in the locker room of a department store decades ago. Carroll included the accusation in a 2019 book, and Trump criticized Carroll when asked about him in a later interview. Trump’s comments prompted Carroll to press charges.
Lawyers for both administrations have concluded that Trump’s statements denying his claims were prompted by questions put to him as a result of his tenure as president.
However, substituting the US government for a party in a civil action can have far broader implications than just knowing who pays the legal bills. In many cases, such a substitution can end the trial because the move involves legal doctrines such as sovereign immunity. For lawmakers like Brooks, this would also include the speech or debate clause of the Constitution, which generally offers significant protection against legal liability for the actions of lawmakers in the course of their business.
While lawsuits for personal injury and property damage due to the negligence of a government employee or official often continue, those who claim injury or damage due to an intentional act are usually dismissed out of hand after the US government intervention.