The Justice Department has turned down Republican Rep. Mo Brooks’ request to defend him in a lawsuit accusing him of inciting the Jan. 6 attack on the Capitol.
The lawsuit, filed in March by Democratic Rep. Eric Swalwell, names Brooks, former President Donald Trump, and attorney Rudy Giuliani as defendants in connection with their participation in a “Save America” rally near the White House on the day Congress certified Joe Biden’s election as the 46th President of the United States.
Swalwell, who is also suing Brooks and Trump in private, claims the defendants summoned their supporters to Washington, D.C. after failing to overturn the election results through litigation.
The California Democrat claimed that at the rally, they used inflammatory rhetoric such as “Stop the Steal” to rally supporters to march to the Capitol building while both houses were in session.
In response to the lawsuit, Brooks last month requested that the Justice Department represent him under the Westfall Act, claiming that he was acting within the scope of his duties as a House representative at the time of the alleged conduct.
The Justice Department declined his request on Tuesday, stating in a filing that “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.”
“In light of the Department’s declination, the United States should not be substituted as a defendant in this action,” it said.
The lawyers concluded that Brooks on Jan. 6 was participating in a campaign activity, which is not part of the business of the United States.
“Members run for re-election themselves and routinely campaign for other political candidates. But they do so in their private, rather than official capacities,” they said.
According to the department, the complaint alleges a conspiracy that is clearly outside the scope of official business.
“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 – and thus is not the type of conduct for which the United States is properly substituted as a defendant,” the legal filing stated.
Earlier Tuesday, the House of Representatives turned down Brooks’ request to intervene in the case, writing in a three-page letter that “it is not appropriate for it to participate in the litigation.”