DOJ says GOP Rep. Mo Brooks was not acting in official capacity in Capitol riot lawsuit

The Justice Department handed Rep, Mo Brooks, R-Ala., a legal setback Tuesday when it notified a federal court that Brooks hadn't been acting in his official capacity when he spoke at the pro-Trump rally on Jan. 6, the day of the U.S. Capitol riot.

Rep. Eric Swalwell, D-Calif., filed a lawsuit in March accusing former President Donald Trump, Donald Trump Jr., Rudy Giuliani and Brooks of violating federal civil rights laws and local incitement laws. All spoke at a rally near the White House on Jan. 6 before members of the crowd stormed the Capitol.

Brooks had argued that he couldn't be sued because he was acting in his official capacity and that therefore, the U.S. should be listed as the defendant, not him, and the case against him should be dismissed.

Swalwell argued in his suit that the mob attack was "a direct and foreseeable consequence of the defendants' false and incendiary allegations of fraud and theft, and in direct response to the defendants' express calls for violence."

In his speech before the Capitol riot, Brooks told Trump supporters, "Today is the day American patriots start taking down names and kicking a--."

Brooks sought to invoke the Westfall Act, which provides that federal officials can't be sued for what they do in their official capacities. But the Justice Department said in the filing Tuesday evening that there was nothing official about the rally because it was a campaign event.

"It is no part of the business of the United States to pick sides among candidates in federal elections," the court filing said. It noted that when members of Congress run for re-election, they have to carefully distinguish between campaign functions and their official functions. "The conduct at issue here thus is not the kind a member of Congress holds office to perform."

The suit also accuses Brooks of trying to interfere with the counting of the electoral vote, which "would plainly fall outside the scope of employment for an officer or employee of the United States," the filing said.

The Justice Department reached the opposite conclusion about the Westfall Act when it concluded that Trump acted in his official capacity in denying that he had sexual relations in a New York department store with gossip columnist E. Jean Carroll. Answering reporters' questions about his veracity and conduct are part of a public official's duties, the Justice Department concluded.

In the Swalwell lawsuit, Trump's attorneys haven't formally sought to invoke the Westfall Act. In their response to the lawsuit, filed in May, they said in a footnote that he is covered by it, but their main argument is that Trump has absolute immunity from civil lawsuits over his official actions while in office. They said he was free as president to advocate for Congress to take action favorable to him in counting the electoral vote, just as he was free to push Congress to pass bills he supported.

Trump's attorneys also said the lawsuit improperly invites the federal courts "to make a determination about what is or is not proper for the president to say at a political speech advocating for governmental action."