DOJ declines to defend Mo Brooks in Eric Swalwell's Capitol riot lawsuit

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The Department of Justice declined late Tuesday to represent Rep. Mo Brooks in a civil lawsuit against the Alabama congressman concerning the Capitol riot.

Why it matters: Brooks had argued he should have immunity in the suit, filed by Rep. Eric Swalwell (D-Calif.) against him, former President Trump, Donald Trump Jr. and Rudy Giuliani. Brooks said he was acting as a government employee when he spoke at a rally before the insurrection.

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  • But lawyers for the DOJ said in a court filing late Tuesday that the record indicates that Brooks' appearance at the 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 Jan. 6 rally at which the suit's defendants attended was organized by a pro-Trump nonprofit and the DOJ lawyers wrote they "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."

What else they're saying: "Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative — or any federal employee," the Justice Department lawyers wrote.

  • "In light of the Department's declination, the United States should not be substituted as a defendant in this action."

The other side: Brooks has previously described the lawsuit as "frivolous" and "meritless."

Flashback: Swalwell's representatives served the suit on Brooks last month after trying since March to do so and hiring a private investigator to locate him.

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