Has the Garland DOJ stiffened its spine? The Justice Department signaled that it won’t defend Republican Representative Mo Brooks and their reasoning suggests they might not defend Trump either for their alleged part in the January 6th domestic terrorist attack on the U.S. Capitol.
The Justice Department declined in a filing on Tuesday to defend Republican Representative Mo Brooks (Trump-Alabama) in a March civil case brought by Rep. Eric Swalwell (D-CA) that alleges Brooks, former President Trump, Donald Trump Jr., and Rudy Giuliani of violating federal civil rights laws and local incitement laws when they appeared to conspire to instigate the January 6th terrorist attack upon the Capitol, because Brooks was not acting in his capacity as a lawmaker and thus is not protected under the Westfall Act.
“The record indicates that Brooks’s appearance at the January 6 rally was campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections,” the department concluded.
The Westfall Act protects federal employees acting within the scope of their office or employment at the time, because their action is thus “deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.”
The irony of inciting a domestic terrorist attack that killed five people and preventing the peaceful transfer of power and then expecting the government you incited an attack against to defend you should be lost on no one.
During the “Save America” “Stop the Steal” rally that took place right before the crowd attacked the Capitol, the Republican Congressman told Trump supporters, “Today is the day American patriots start taking down names and kicking a–” and directed them to “Stop by the Capitol” after the morning’s incitement rally. The Republican suggested that saving America might take risking their own lives, mentioning that “our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives” for “foundational principles.” He pointed out that the Bill of Rights protected them from the government. Brooks asked them if they were willing to do the same.
Brooks warned, “America is at risk!” And then told them who the “enemy” was – “Socialist Democrats” (there are maybe two socialists in office, one is Independent) who were attacking their “freedom to bear arms,” but gave them the solution: “We’re going to stop them!” “We’re not going to continue to let them steal our elections!”
Brooks asked the pre-primed cult audience, “Are you willing to do what it takes to fight for America!” In case anyone missed the point, he added, “Today the curtain will be pulled back and Americans will learn which Republican Senators and Congressmen have the courage to fight for America!”
“The fight begins today!”
Days later, Brooks told an Alabama news service, “I make no apology for doing my absolute best to inspire patriotic Americans to not give up on our country and to fight back against anti-Christian socialists.”
Brooks’ tune changed once Swalwell filed his suits. Suddenly it was Trump’s fault that Brooks appeared to have incited an attack and even directed the crowd where to go.
Brooks also attempted to pin some of the blame on Trump, arguing that the only reason he spoke at the rally was because the White House asked him to make an appearance. “But for the White House request, Brooks would have not appeared at the Ellipse rally,” the filing read, also noting that Brooks’ office and the White House reached an agreement about the “parameters” of the speech in question.
These are not people of integrity or backbone, to say the least.
The DOJ’s reasoning gives rise to the notion that the DOJ will also “decline” to defend Trump from the lawsuits brought by Swalwell.
Former Special Counsel at the Department of Defense and co-editor-in-chief at Just Security Ryan Goodman commented, “DOJ sends a clear-as-day signal that Trump would also not be shielded from these lawsuits brought by @RepSwalwell, Capitol Police officers, and others for allegedly inciting #Jan6 attack.
Golden words: “–or any federal employee–”
This matters because Trump’s lawyers have claimed he is immune to any civil suit and they also believe the dangerous former president to be covered by the Westfall Act. Obviously, the DOJ does not agree (nor do logic, reality, or facts).
Golden words: “–or any federal employee–” pic.twitter.com/OVcdfFPUSB
— Ryan Goodman (@rgoodlaw) July 28, 2021
Furthermore, even Trump made it clear the “rally” was about the election and Brooks appeared to understand that it was a campaign event, funded by the Trump campaign and other Trump campaign supporting groups:
2. Other signals in DOJ brief that Trump is also not shielded by Westfall Act from these lawsuits. pic.twitter.com/bEwu7YNjUX
— Ryan Goodman (@rgoodlaw) July 28, 2021
It was a brilliant move on Swalwell’s part to file these lawsuits. The inciters of the domestic terrorist attack on our nation, our democracy, and our lawmakers, Speaker of the House and then Vice President will not be shielded by this DOJ in civil cases.
Ms. Jones is the co-founder/ editor-in-chief of PoliticusUSA and a member of the White House press pool.
Sarah hosts Politicus News and co-hosts Politicus Radio. Her analysis has been featured on several national radio, television news programs and talk shows, and print outlets including Stateside with David Shuster, as well as The Washington Post, The Atlantic Wire, CNN, MSNBC, The Week, The Hollywood Reporter, and more.
Sarah is a member of the Society of Professional Journalists.