Mo Brooks speaks at a rally at the Ellipse on Jan. 6 before Trump supporters march to the Capitol: Twitter

By Glynn Wilson –

WASHINGTON, D.C. — North Alabama’s most vocal pro-Trump Republican Congressman, Mo Brooks — who will most likely win a seat in the United States Senate in November, 2022 since he has no effective opposition — will have to defend himself in a lawsuit claiming he was directly involved in inciting the violent insurrection on the Capitol Jan. 6.

The U.S. Department of Justice has declined his request to defend him, saying he was acting outside the scope of his official duties as a Congressman in joining Trump on the stage at the “Stop the Steal” rally and delivering an incendiary speech just before the Capitol attack, according to a court filing.

Brooks had asked the department to certify that he was acting as a government employee during the rally. If the department had agreed to defend him, he would have been dismissed from the lawsuit and the United States substituted as a defendant.

“The record indicates that Brooks’s appearance at the Jan. 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,” the Justice Department concluded. “Members of Congress are subject to a host of restrictions that carefully distinguish between their official functions, on the one hand, and campaign functions, on the other.”

According to New York Times coverage, the decision could mean the department could also reject defending the former president in the lawsuit as well.

Brooks did not immediately respond to a request for comment.

Lawyers for the House also said on Tuesday that they declined to defend Brooks, given that it “does not challenge any institutional action of the House,” a House lawyer wrote in a court filing, “it is not appropriate for it to participate in the litigation.”

The Justice Department and House filed their briefs on Tuesday, the deadline set by Judge Amit P. Mehta of the Federal District Court for the District of Columbia.

The lawsuit, filed in March by Representative Eric Swalwell, Democrat of California, accuses Mr. Brooks of inciting a riot and conspiring to prevent a person from holding office or performing official duties. It accuses Brooks, along with Trump, his son Donald Trump Jr. and his onetime personal lawyer Rudolph W. Giuliani of playing a key role in inciting the Jan 6. attack during a rally near the White House in the hours before the storming of the Capitol.

Citing excerpts from their speeches, Swalwell accused the men of violating federal law by conspiring to prevent an elected official from holding office or from performing official duties, arguing that their speeches led Trump’s supporters to believe they were acting on orders to attack the Capitol.

Swalwell alleged that their speeches encouraged Trump’s supporters to unlawfully force members of Congress from their chambers and destroy parts of the Capitol to keep lawmakers from performing their duties.

During the rally, Brooks told attendees that the United States was “at risk unlike it has been in decades, and perhaps centuries.” He said that their ancestors “sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives” for the country.

“Are you willing to do the same?” he asked the crowd. “Are you willing to do what it takes to fight for America?”

Swalwell said defendants in his lawsuit had incited the mob and had continued to stoke false beliefs that the election was stolen.

“As 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 at the rally, a violent mob attacked the U.S. Capitol,” Swalwell said in his complaint. “Many participants in the attack have since revealed that they were acting on what they believed to be former President Trump’s orders in service of their country.”

Brooks asked the Justice Department to defend him in the case in June, citing the Westfall Act, which essentially substitutes the Justice Department as the defendant when federal employees are sued for actions deemed within the scope of their employment, according to court documents. Brooks described his speech on Jan. 6 as part of his job, saying that his duties include delivering speeches, making pronouncements on policy and persuading lawmakers.

The Justice Department rejected that assertion.

“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 sort of conduct for which the United States is properly substituted as a defendant under the Westfall Act,” the department wrote. “Brooks does not argue otherwise. Instead, he denies the complaint’s allegations that he conspired to incite the attack on the Capitol.”

Trump has not sought to have the government substitute for him as a defendant in the lawsuit under the Westfall Act. But he has argued in court filings that the statements he made on Jan. 6 are covered by broad immunity, that he could not be sued for making them and that the lawsuit violated his free speech rights.

Should a judge deny Trump’s claims, he could ask the Justice Department to intervene on his behalf. But according to the Times, its decision in Brooks’s case lowered the chances that would happen.

In an emotional first hearing of the Select Committee to Investigate the January 6th Attack on the United States Capitol, witnesses described their experiences on that day and efforts to protect the Capitol and elected officials. Throughout the hearing, graphic video footage captured during the attack was shown.

The Select Committee to Investigate the January 6th Attack on the United States Capitol, chaired by Homeland Security Committee head Representative Bennie Thompson (D-MS), is composed of several Democratic and two Republican lawmakers. Republican Representatives Liz Cheney (R-WY) and Adam Kinzinger (R-IL) were selected and appointed by Speaker Nancy Pelosi (D-CA). Minority Leader Kevin McCarthy (R-CA) removed his all of his appointees after Speaker Pelosi barred two Republican members from serving on the panel.