A lawsuit against the men who spoke at a rally before the Capitol riot on Jan. 6 is putting the Justice Department in a tricky position.
The department is considering whether those federal officials acted within the scope of their jobs that day, which would trigger a form of legal immunity. Government watchdogs said the case has serious implications for who’s held accountable for violence that delayed the election certification and contributed to the deaths of five people.
One of the defendants is Republican Rep. Mo Brooks of Alabama, who stood before the crowd on Jan. 6 and said:
“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?”
Democratic Rep. Eric Swalwell of California featured those remarks in a lawsuit this year. He’s sued Brooks, former President Donald Trump and others over lying about the election, inciting a mob to storm the Capitol, and causing pain and distress to people inside the complex.
What’s at stake in the case
Brooks argued in court papers that his statements came as Congress prepared to certify the election results and that he was acting in his role as a federal lawmaker, representing his constituents, that day.
Now, the Justice Department and the top lawyer for the U.S. House of Representatives are involved. U.S. District Judge Amit Mehta has directed them to say by Tuesday whether they consider Brooks’ statements to be part of his duties as a member of Congress, and whether the federal government should substitute itself as a defendant in the case.
“We hope DOJ will see Brooks’ appalling conduct on Jan. 6 for what it was and what he admitted it was, which was campaign activity performed at the request of Donald Trump, which inarguably is beyond the scope of his employment as a member of Congress,” said Philip Andonian, a lawyer who brought the case on behalf of Swalwell.
Andonian said there’s no way Brooks and Trump were acting in their capacity as federal officials, which would give them a legal shield under a law known as the Westfall Act. Instead, he said, they were engaged in campaign activity, which doesn’t deserve that kind of protection.
Trump’s team disagrees. Attorney Jesse Binnall said the former president is covered by broad immunity for his statements that day.
“When the president … speaks to the American people, and talks to them about congressional action, that’s the president using the bully pulpit,” Binnall said. “That’s not something that’s at the outer perimeter of the president’s duties.”
Precedent for what counts as official duties
Watchdog groups who are demanding accountability for Trump, Brooks and others who spoke at the rally this year are following the case closely.
“The Justice Department has historically taken a very broad view of what qualifies as being within the scope of a federal employee’s official job,” said Kristy Parker, a 19-year veteran of the Justice Department who now works at the nonprofit Protect Democracy.
Consider a case from earlier this year when the Justice Department decided Trump was acting within his job when he made incendiary statements about the writer E. Jean Carroll.
Carroll accused the former president of raping her decades ago. Trump denies the allegation.
American University law professor Paul Figley used to work in the Justice Department.
“Generally speaking, if you’re in the place where they hired you to be and you’re generally doing what they hired you to do, you’re within the scope of your employment,” Figley said.
Past cases involving congressmen have been pretty generous about what they could do and say within the scope of their jobs, Figley added.
Where will the DOJ draw the line?
Parker said this case, centered on the violent insurrection, is a place where the Justice Department needs to draw a line.
“When you really think about that, it’s like, well gosh, what kind of a system of government did we create here if we’re powerless to stop attacks from within because we have to define those attacks as within the scope of these people’s offices?” she asked.
Parker said no one is above the law: not the president or a member of Congress.
She said she’s worried that if the Justice Department endorses Brooks’ and Trump’s statements on Jan. 6 as within the scope of their federal employment, it could complicate the efforts of prosecutors to bring the rioters to justice.
“That is not going to have a good impact on the ongoing criminal cases when it comes to persuading judges that the people who stormed the Capitol should get hefty sentences when the people who inspired them to do it have been endorsed as acting within the scope of their official jobs,” Parker said.