The Justice Department said Tuesday that it would not support a claim by Rep. Mo Brooks (R-Ala.) that he was acting in his official capacity as a member of Congress when he spoke at the pro-Trump “Stop the Steal” rally that precipitated the deadly Capitol riot Jan. 6.
Rep. Eric Swalwell (D-Calif.) sued Brooks alleging that he, the former president, Donald Trump Jr., and former Trump attorney Rudy Giuliani broke Washington, DC laws, including an anti-terrorism act, by “inciting” the riot which led to the deaths of five people.
In a 29-page response to Brooks’ petition, which would obligate the DOJ to take over his defense if successful, the department said the lawmaker’s appearance at the rally was “campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections.”
“Members of Congress are subject to a host of restrictions that carefully distinguish between their official functions, on the one hand, and campaign functions, on the other,” the DOJ added. “The conduct at issue here thus is not the kind a Member of Congress holds office to perform”.
“Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative—or any federal employee—and thus is not the sort of conduct for which the United States is properly substituted as a defendant,” the filing went on.
Brooks described the Justice Department’s filing to The Wall Street Journal Tuesday as “wholly and completely false.” He said he had been “asked by the White House to give a speech—that’s what we congressmen do.”
“The facts and the law are clearly on my side and I will definitely appeal any adverse decision by the trial court judge,” Brooks added.
In his remarks that day, Brooks told the crowd: “America does not need and cannot stand, cannot tolerate any more weakling, cowering, wimpy Republican congressmen and senators who covet the power and the prestige the swamp has to offer, while groveling at the feet and the knees of the special interest group masters … today is the day American patriots start taking down names and kicking ass.”
Hours later, Trump supporters breached the Capitol building, disrupting the joint session of Congress to certify the results of the 2020 presidential election.
The Justice Department filed its brief on the same day a House select committee held its first hearing examining the events of Jan. 6. The panel heard harrowing testimony from officers with the US Capitol Police and Washington, DC Metropolitan Police Department about their experiences on that day.