Justice Dept. says Jan. 6 speeches weren’t job duties

WASHINGTON — Government officials who spoke to the crowd before the Jan. 6 insurrection at the U.S. Capitol were not shielded by their job title, the Justice Department argued in a new filing in a lawsuit brought by East Bay Rep. Eric Swalwell.

That position was also supported by a letter from Rep. Zoe Lofgren, a fellow Bay Area Democrat who chairs the House Administration Committee.

Swalwell has sued former President Donald Trump, his son Donald Trump Jr., his attorney Rudy Giuliani and Republican Rep. Mo Brooks of Alabama, seeking to declare them responsible for the riot that Swalwell says “terrorized lawmakers,” including himself.

Brooks had sought to remove himself from the lawsuit by arguing his actions — telling hundreds of proTrump protesters, many of whom would shortly thereafter violently storm the Capitol, that it was time to start “kicking ass” and “fight for America” — fell under his official duties and thus the lawsuit should proceed against the United States instead.

But the Justice Department declined to certify that Brooks was acting in his official capacity and argued against the court finding he was. For one, the department said in a view echoed by Lofgren, Brooks’ speech at the rally was clear political campaign activity, long held as separate from official government action. Second, they said, if Swalwell’s allegations of incitement are true, it would also run counter to Brooks’ job, or any other official’s.

“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 wrote.

On Jan. 6, those hundreds of Trump supporters stormed the Capitol, violently overcoming police officers, in an attempt to stop the certification of the presidential election and overturn the results electing President Biden. Lawmakers including Swalwell had to be evacuated from the legislative chambers as the mob overtook the building.

In a brief interview, Lofgren said the legal issue was relatively straightforward.

“Rep. Brooks filed a statement under oath to the court indicating that his speech was a campaign in nature, I mean that pretty much answers the question,” Lofgren said. “It’s never been the case that campaign activity is within the scope of one’s official duties.”

While the Trumps and Giuliani have filed arguments against the substance of Swalwell’s allegations, Brooks’ reaction to the litigation has followed a different path, including a sidesaga of Swalwell hiring a private investigator to officially serve Brooks with the lawsuit, a necessary step in court procedure that is often voluntarily waived, as it was by Swalwell’s other targets.