September 20, 2021

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DOJ rejects Mo Brooks defense, says his Jan. 6 speech not part of duties – AL.com

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Updated at 8:19 p.m.: The U.S. Department of Justice, in a court filing Tuesday, rejected Mo Brooks’ defense that his fiery speech at the pro-Trump rally hours before the former president’s supporters stormed the Capitol was part of his duties as a congressman.

The DOJ agreed with an opinion from the House Administration Committee that House rules said such actions were not within the scope of his office, as Brooks had argued in a court affidavit last month.

In that affidavit, Brooks asserted the Westfall Act as protection for his actions at the rally – which protects federal employees from legal action when acting within the scope of their office. The DOJ filing concludes with, “The United States respectfully requests that Brooks’ petition for a Westfall Act certification be denied.”

The DOJ said in its filing, “The record indicates that Brooks’ 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. 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 conduct at issue here thus is not the kind a Member of Congress holds office to perform, or substantially within the authorized time and space limits, as required by governing law.

“Brooks’ request for certification and substitution of the United States for campaign-related conduct appears to be unprecedented.”

Brooks asked the Justice Department to certify his actions under the Westfall Act on June 7, the DOJ said in its filing. Before the DOJ ruled on the request, the filing said, Brooks asked the court on July 2 to give him immunity under the Westfall Act.

The judge presiding over the case, U.S. District Judge Amit Mehta, could still grant Brooks protection under the Westfall Act, the DOJ said in its filing. The DOJ also noted that the House Administration Committee also gave the opinion that Brooks did not act within the scope of his office.

Before the judge potentially grants Brooks’ that protection, assuming the DOJ argument was rejected, it must be determined that Brooks did not take part in the conspiracy alleged in the lawsuit brought by California Democrat Congressman Eric Swalwell, the DOJ filing said.

“Like other elected officials, members (of Congress) run for reelection themselves and routinely campaign for other political candidates,” the DOJ filing said. “But they do so in their private, rather than official, capacities.”

With the justice department finding Brooks should not be protected under the Westfall Act, the filing said repeatedly that Brooks has not met his burden of proving the speech was part of his official duties as a congressman.

Even Brooks’ nuanced explanation of including the phrase “kicking ass” in his speech demonstrates the speech was part of a campaign event, the DOJ filing said.

“Brooks highlighted that ‘the 2022 and 2024 elections are right around the corner,’ and has asserted in his petition that his statements expressed his ‘desire to beat offending Republicans in those elections,’” the filing said.

Original story: A committee in the U.S. House of Representatives said, in a July 23 letter to the Department of Justice, that Rep. Mo Brooks acted outside the scope of his office when he spoke at a pro-Trump rally hours before the Jan. 6 storming of the U.S. Capitol.

That committee opinion disagrees with Brooks’ claims in a court filing last month when he said that his speech at the Ellipse near the White House was all a part of his duties and that he would not have been invited to speak by the Trump administration if he were not a congressman.

The filing Tuesday came in the federal lawsuit brought by California Democrat Congressman Eric Swalwell alleging that Brooks – along with co-defendants former President Donald Trump, Trump’s son Donald Jr. and Trump attorney Rudy Giuliani – were responsible for the Capitol siege.

The judge in the case, U.S. District Judge Amit Mehta, ordered the United States as well as Swalwell to respond to Brooks’ assertion that he was acting within the scope of his office by Tuesday.

In a court filing, the House general counsel said it would not participate in the lawsuit.

“Given that the underlying litigation was initiated by a current Member of the U.S. House of Representatives (Swalwell) individually suing another current House Member (Brooks) individually and does not challenge any institutional action of the House or any of its component entities, the (counsel’s office) has determined that, in these circumstances, it is not appropriate for it to participate in the litigation,” the filing said.

“A radical, left-wing Socialist Congresswoman supports Socialist colleague Eric Swalwell and attacks Mo Brooks without citing one shred of supporting case or statutory law,” Brooks said of the committee letter signed by committee chair, Rep. Zoe Lofgren, D-Calif.

“No news there. That is the price one must pay to defend America from the evils of Socialism….It may take time, but I am 100% sure that, if a judge will examine the facts and apply the law stated by the U.S. Circuit Court of Appeals, D.C. Circuit, in Council on American Islamic Relations v. Ballenger, then Mo Brooks wins this fight,” Brooks responded.

The Ballenger case Brooks mentions appears to reference a 2005 federal court ruling throwing out a libel case against former Rep. Cass Ballenger, R-N.C. after he called CAIR a “fundraising arm” for a terrorist organization.

The counsel’s office said it has taken similar positions in other litigation involving members of Congress.

Brooks has come under criticism for his speech in which he told the crowd, “But let’s be clear, regardless of today’s outcome, the 2022 and 2024 elections are right around the corner, and 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. As such, today is important in another way, today is the day American patriots start taking down names and kicking ass.”

Hours later, pro-Trump supporters stormed the Capitol in a violent conflict that resulted in five deaths and dozens of law enforcement officers injured. The occupation of the Capitol was an effort to prevent Congress from certifying presidential election results that declared Joe Biden the winner over Trump.

In an affidavit filed with the court last month where Brooks defended the speech, he said that Swalwell “lies and distorts” regarding the context of the “kicking ass” section of the speech.

In its five-page letter to the justice department, the House administration committee disagreed with Brooks’ statement that his speech and presence at the pro-Trump rally was a part of his job as a congressman.

“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,” the committee letter said.

“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.”

The letter also states that “conduct that is campaign or political in nature is also outside the scope of official duties and not permissible official activity. For example, regulations of the Committee on House Administration provide that a Member may use their official funds only for ‘official and representational expenses,’ and ‘may not pay for campaign expenses’ or ‘campaign-related political party expenses with such funds.’”

Brooks’ response to the court is due Aug. 10.

Updated today, July 27, 2021, at 9:05 p.m. with new information on the Department of Justice filing.

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