WASHINGTON – The United States Department of Justice said on Tuesday that a speech Congressman Mo Brooks gave just hours before rioters stormed the U.S. Capitol was not within the scope of his duties as a member of Congress.
Brooks had asked the court for immunity in a lawsuit filed against him by California congressman Eric Swalwell. The lawsuit, which also includes former President Donald Trump, Donald Trump Jr., and Trump lawyer Rudy Giuliani, alleges Brooks was partially responsible for inciting the deadly attack on the Capitol.
Congressman Brooks asked the Department of Justice to grant him immunity under the Westfall Act, which provides legal protection for government employees in common tort lawsuits for actions taken as part of their official duties. In the Tuesday filing, the DOJ said Brooks’ speech on January 6th “was campaign activity”, and argued that “it is no part of the business of the United States to pick sides among candidates in federal elections.”
The filing acknowledges that the speech took two months after the presidential election, but the DOJ argues that because the rally was funded by a political campaign or its supporters and was aimed at affecting the outcome of an election, it still qualifies as electioneering activity.
In a July 23rd letter, the U.S. House Administration Committee also refuted Brooks’ claims that his speech was part of his official duties.
“Essentially, in deflecting the allegation that his speech was an incitement to violence, Representative Brooks has sworn under oath to the court that his conduct was instead in furtherance of political campaigns. As noted, standards of conduct that apply to Members and precedents of the House are clear that campaign activity is outside the scope of official duties and not a permissible use of official resources.”Rep. Zoe Lofgren, D-Calif., U.S House Administration Committee Chairperson
U.S. District Judge Amit Mehta, who is presiding over the suit, asked the DOJ and the U.S. House general counsel’s office to weigh in on the issue. The House general counsel declined to get involved in the matter.
Since Brooks’ request for immunity is with the court, it will be up to Mehta to decide whether or not to grant him protection under the Westfall Act. However, since the DOJ has refused to validate his claims, the burden of proof will be on Brooks to show that his actions were in fact part of his official duties.
Brooks has until August 10th to respond to the court.