Rep. Eric Swalwell (D-Calif.) sued Brooks, former President Donald Trump, and others in March, claiming they incited the breach through comments made at a rally earlier that day.
Brooks argued in a filing this month that he was acting within the scope of his office and should either be dismissed as a defendant or be replaced by the Department of Justice (DOJ). Brooks said he only spoke at the rally on The Ellipse because he was asked to make remarks by a White House official. He also prepared the speech in his congressional office.
Federal law states that the DOJ shall defend federal employees against lawsuits “for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”
But federal lawyers said Tuesday that Brooks did not show he was acting within the scope of his office on Jan. 6. Lawyers noted that the Jan. 6 rally was funded by and organized by Trump’s campaign and groups supporting Trump’s candidacy.
“The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities,” the lawyers wrote in a filing.
U.S. District Judge Amit Mehta, an Obama nominee overseeing the case, could still decide to substitute the DOJ for Brooks.
Brooks did not respond to a request for comment. He does not have a lawyer listed on the court docket.
Philip Andonian, an attorney representing Swalwell, said in a statement to news outlets that “we appreciate the thoughtful analysis by the Committee on House Administration and the Department of Justice and could not agree more with their conclusion.”
“This conduct manifestly is outside the scope of Brooks’s employment as a member of Congress and the House and DOJ made the right call in requiring him to answer directly for his actions. This is a great step toward justice,” he added.
House Administration Chairwoman Zoe Lofgren (D-Calif.) said in a letter last week that Brooks’s conduct was outside the scope of his office.
In a separate filing in the case this week, the general counsel for the House of Representatives said it would not participate in the litigation.
“Given that the underlying litigation was initiated by a current Member of the U.S. House of Representatives individually suing another current House Member individually and does not challenge any institutional action of the House or any of its component entities, the Office has determined that, in these circumstances, it is not appropriate for it to participate in the litigation,” the counsel, Douglas Letter, said.