Biden's DOJ announces they WON'T protect Mo Brooks in the lawsuit brought by Eric Swalwell for 'inciting' the Capitol riot
- The Justice Department said Brooks was not acting in his official capacity as a government employee when he spoke at Donald Trump's January 6th rally
- The Alabama representative had asked the government to serve as defendant in his place in a lawsuit brought by California Democratic Rep. Eric Swalwell
- Trump, his son Donald Trump Jr. and Rudy Giuliani are also named as defendants
- Swalwell accused the four of inciting a riot at the US Capitol on January 6th
- Brooks tried to cite the law Trump successfully used in his E. Jean Carroll suit
- Biden's DOJ held up Trump's ruling, but they called Brooks's request 'unprecedented' and amounted it to 'picking sides' in a federal election
The Justice Department on Tuesday rejected a request from Republican Rep. Mo Brooks to be protected from California Democrat Rep. Eric Swalwell's lawsuit alleging he 'incited' the Capitol riot.
Biden's DOJ concluded in a court filing that Brooks was not acting in his official government capacity when he spoke to Trump supporters ahead of the MAGA riot. If he had been, the government would have stepped in as a defendant in his place.
'The record indicates that Brooks's appearance at the January 6 rally was campaign activity, and it is in no part of the business of the United States to pick sides among candidates in federal elections,' the decision read.
Rep. Mo Brooks (left) will not be replaced as defendant by the federal government in a lawsuit brought by Rep. Eric Swalwell (right) over the MAGA riot because the DOJ argues Brooks was not acting in his official capacity as a government employee at a Trump rally on January 6th
Shortly before violent Trump supporters clashed with Capitol and DC police, the Alabama lawmaker told the cheering crowd at the 'Save America' rally to 'stop at the Capitol' and encouraged 'American patriots' to '[take] down names and [kick] ass.'
The DOJ called Brooks's 'request for certification and conduct' of his actions 'unprecedented.'
Federal attorneys argued the government could not defend Brooks because if allegations against him are proven true, they would 'plainly fall outside the scope of employment for an officer or employee of the United States.'
'Conspiring to prevent the lawful certification of the 2020 election and to injure Members of Congress and inciting the riot at the Capitol. Alleged action to attack Congress and disrupt its official functions is not conduct a Member of Congress is employed to perform...'
Brooks encouraged a crowd of Trump supporters to start 'taking down names and kicking ass' shortly before violent MAGA rioters stormed the US Capitol (pictured on January 6th)
In his March 2021 lawsuit Swalwell accuses Brooks, Donald Trump, Donald Trump Jr. and Rudy Giuliani of conspiring to undermine the election and inciting a riot.
The California lawmaker blamed them for alleged 'emotional distress and other injuries' he sustained from being at the Capitol that day.
Brooks denied inciting violence at the Capitol.
In his petition to the government Brooks claimed protection under the Westfall Act, which protects federal employees from tort claims if they were taking action within their government duties by allowing the government to step in as the defendant.
Trump successfully used the Westfall Act in a defamation suit brought by columnist E. Jean Carroll, who wrote in a memoir that Trump raped her in a department store dressing room in 1990s.
Biden's Justice Department held up the decision to represent the former president in June.
Ex-President Donald Trump, his son Donald Trump Jr. and Trump's former personal lawyer Rudy Giuliani are also implicated in the Capitol riot in Swalwell's suit
But in Brooks's case, the DOJ argues he 'has not met his burden to show that his activities at the January 6 rally were within a Representative’s scope of employment related to his official duties.'
The 29-page document points out that he didn't dispute that the rally was funded and organized by pro-Trump groups nor that 'the purpose of the rally was to advocate that Donald Trump should be declared the winner of the 2020 election.'
'Indeed, Brooks states in his petition that his conduct was “primarily motivated by” his “desire to represent the will of” his constituents “who overwhelmingly preferred that Donald J. Trump serve as President,' it reads.
Despite filing the suit in March, Swalwell's lawyer told CNN they had to hire a private investigator to give Brooks the papers. In June an investigator reportedly left the papers with Brooks's wife.
Brooks broke the news he was served Swalwell's lawsuit on Twitter, when he alleged Swalwell's team trespassed on his property to give it to his wife
The Alabama lawmaker released CCTV footage appearing to show a man chasing his wife
He was holding court documents as he jogged into the garage
Brooks lashed out against Swalwell on Twitter and alleged his team broke the law.
'Well, Swalwell FINALLY did his job, served complaint (on my WIFE). HORRIBLE Swalwell's team committed a CRIME by unlawfully sneaking INTO MY HOUSE & accosting my wife!' the lawmaker wrote.
'Alabama Code 13A-7-2: 1st degree criminal trespass. Year in jail. $6000 fine.'
Brooks also released security camera footage of a man appearing to follow his wife into their garage to allegedly serve her the lawsuit.
