On Tuesday, the Department of Justice announced that it would not shield Rep. Mo Brooks from Rep. Eric Swalwell’s lawsuit against the fomenters of the Jan. 6 insurrection. The DOJ’s decision may seem surprising: After all, Attorney General Merrick Garland has continued to protect Donald Trump from E. Jean Carroll’s defamation lawsuit, signaling a broad view of elected officials’ immunity from civil suits. In Swalwell’s case, however, the Justice Department seized upon comments demonstrating that, at the Jan. 6 rally, Brooks was acting not as an elected official, but as a politician seeking to influence future elections. Ironically, it was Brooks himself who made these statements, under oath, in an effort to evade this very lawsuit. The congressman’s legal defense has turned into a legal liability.
Swalwell’s lawsuit marks a serious effort to hold Brooks, Trump, and Rudy Giuliani accountable for their conduct at the rally that preceded—and incited—the Jan. 6 insurrection. He sued all three defendants for civil rights violations, as well as more garden variety misdeeds known as torts. In this case, Brooks’ alleged torts included negligence, aiding and abetting common law assault, intentional infliction of emotional distress, and bias-related crimes. Brooks sought to dismiss these tort claims by invoking the Westfall Act. Under this statute, a federal official facing a civil suit can ask the Department of Justice to certify that they were acting within the scope of their employment when the alleged tort occurred. If the DOJ agrees, the United States is substituted as the defendant. And because the U.S. cannot be sued for a wide range of torts, that substitution usually ends the case.
Predictably, Brooks asked the Justice Department to certify that he was acting as an employee of the federal government carrying out his official duties at the Jan. 6 rally. This argument is hard to swallow. Then again, so was Trump’s assertion that defaming E. Jean Carroll was a presidential act, yet Garland’s Justice Department still endorsed his theory. What appears to have made the difference in this case is Brooks’ own inadvertent admission that he was acting as a campaigner, not a congressman, on the morning of Jan. 6.
This admission was prompted by a claim at the heart of Swalwell’s lawsuit: that Brooks urged the crowd to commit violence at the Capitol. Central to Swalwell’s theory was a segment of Brooks’ speech in which he declared: “Today is the day American patriots start taking down names and kicking ass!” Brooks continued:
Now, our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives, to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you: Are you willing to do the same? My answer is yes. Louder! Are you willing to do what it takes to fight for America? Louder! Will you fight for America?
Swalwell’s complaint cited Brooks’ call to “start … kicking ass” over and over again. It’s easy to see why: In context, this language transcends the usual partisan rhetoric, arguably crossing over into incitement of violence against members of Congress who certified the election results.
In a long, rambling affidavit, Brooks tried to counter this allegation by reframing his call to begin “kicking ass.” He testified that, in this passage, “I am talking about ‘kicking ass’ in the 2022 and 2024 ELECTIONS!” Brooks added: “My intent in uttering these words was to encourage Ellipse Rally attendees to put the 2020 elections behind them (and, in particular, the preceding day’s two GOP Senator losses in Georgia) and to start focusing on the 2022 and 2024 elections.” And he averred that “once we get and ‘take down’ their names, our task is to ‘kick their asses’ in the 2022 and 2024 election cycles.”
This narrative provides perhaps the most self-defeating explanation Brooks could possibly muster at this stage in litigation. As the Justice Department pointed out in its Tuesday filing, “activities specifically directed toward the success of a candidate for a partisan political office in a campaign context” are “not within the scope of the office or employment of a Member of the House of Representatives.” That’s because it is not the “business of the United States to pick sides among candidates in federal elections.” Representatives thus cannot invoke the Westfall Act’s protections when they are engaged in “campaign efforts.”
Here, the Justice Department noted, Brooks himself “conceded” that a “basic feature of his participation in the rally was to influence the 2022 and 2024 elections.” Citing his affidavit, the DOJ wrote that “Brooks’s own account of his actions at the rally attests that they were intended to affect the outcome of both the election that had just occurred and future elections.” And so, the agency concluded, “Brooks’s activities at the rally were not part of his official functions as a Member of the House of Representatives.” As a result, he cannot escape liability under the Westfall Act.
The Justice Department’s argument is exceedingly persuasive. It rests not on any supposition, but on Brooks’ own affidavit, submitted to the court under penalty of perjury. The congressman testified that he was campaigning against candidates in upcoming elections. He admitted that he was “electioneering.” Under multiple federal laws and ethics regulations, a politician cannot conduct campaign activities in their capacity as a federal official. By endeavoring to frame his comments as a partisan battle cry rather than a call to violence, Brooks accidentally relinquished immunity from Swalwell’s suit.
In theory, U.S. District Judge Amit P. Mehta, the Barack Obama nominee overseeing this case, could still shield Brooks under the Westfall Act. Mehta, though, will almost certainly defer to the Justice Department’s determination that the United States is not a proper defendant. It would be quite unusual for a court to force the DOJ into this dispute after the agency determined that it has “no institutional interest” in defending Brooks’ malfeasance. The congressman may yet prevail further down the road. But he has already lost the easiest, fastest opportunity to escape liability. And he has no one to blame but himself.