CAPITOL INSURRECTION: DOJ won't defend Mo Brooks in lawsuit

Jul. 28—A request by U.S. Rep. Mo Brooks, who represents Alabama's 5th Congressional District, for legal protection in a lawsuit stemming from the U.S. Capitol insurrection Jan 6 has been denied by the Justice Department.

The civil lawsuit was filed in March by Democratic U.S. Rep. Eric Swalwell against Brooks, President Donald Trump, Donald Trump Jr. and Rudy Giuliani, alleging that their actions led to the Capitol insurrection.

Brooks told the crowd at a pro-Trump rally before the riot that "today is the day American patriots start taking down names and kicking ass."

However, Brooks has maintained he only meant to fire up the crowd for the next election cycle. He has also said he only gave the speech "because the White House asked him to, in his capacity as a United States Congressman," meaning he was due the legal protections afforded federal employees and members of Congress who are facing civil lawsuits over their work in the federal government.

In a court filing, the Justice Department said Brooks, while at the campaign rally, was engaged in campaign activity, which is not within the scope of his duties as a member of Congress.

"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," Justice Department lawyers wrote.

"... The Department has declined to issue a certification because it cannot conclude that Brooks was acting within the scope of his office or employment as a Member of Congress at the time of the incident out of which the claims in this case arose," the Justice Department explained in a court filing. "In light of the Department's declination, the United States should not be substituted as a defendant in this action."

Federal law known as the Westfall Act authorizes the Justice Department to determine whether an employee was acting within the scope of their office or employment in an incident that is subject to a lawsuit claim. If the Justice Department certifies the employee was doing so, the employee is dismissed and the action proceeds against the United States.

In rejecting Brooks' request for certification, the Justice Department wrote, "it appears that the fundamental purpose of the rally was to advance the electoral success of a presidential candidate."

— The Associated Press contributed to this article.