No immunity for Republican sued over Jan. 6 riot
MAY HURT TRUMP
NO LEADER IN OUR GOVERNMENT IS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ACTS TO SUBVERT THE FREE AND FAIR ELECTION BY GETTING PEOPLE TO GO UP AND RIOT AND INTERFERE.
— DONALD AYER, FORMER SENIOR U.S. JUSTICE DEPARTMENT OFFICIAL
• The U.S. Justice Department's refusal to defend a Republican congressman accused in a civil lawsuit of helping to incite the Jan. 6 attack on the Capitol could hamper former president Donald Trump's legal defence in the same case, experts said.
The department late Tuesday told a federal judge it had declined a request by Rep. Morris (Mo) Brooks to grant him immunity by covering him under the Westfall Act, which shields federal employees from being sued for their words or actions in the course of their employment.
Experts said the move appeared to send a message to Trump, a co-defendant in the case, ruling out immunity when it warned that inciting an attack on Congress “is not within the scope of employment of a representative — or any federal employee.”
Donald Ayer, a senior Justice Department official in the Republican administrations of Ronald Reagan and George H.W. Bush, said: “The government's filing sends a clear message. ... No leader in our government is acting within the scope of his employment when he acts to subvert the free and fair election by getting people to go
up and riot and interfere.”
“The leaders who perpetrated these travesties are personally responsible for their actions.” he added.
A spokesperson for Brooks could not be immediately reached for comment.
Brooks and Trump are co-defendants in a lawsuit by Democratic Rep. Eric Swalwell that accuses them of inciting people during a Jan. 6 rally to attack the Capitol and stop Congress from certifying President Joe Biden's election victory.
Trump is a defendant in two other similar lawsuits, one filed by Democratic Rep. Bennie Thompson and another on behalf of two U.S. Capitol Police officers.
Trump has so far not publicly requested Justice Department protection in the case, nor has his attorney, Jesse Binnall, said whether he intends to ask the department to take a position.
In a statement, Binnall said: “The Supreme Court has been clear that presidents cannot be sued for actions that are related to their duties of office. Addressing Americans about congressional action is a quintessential presidential duty.”
The Justice Department declined to comment when reached by Reuters.
The department riled some Democrats with a pair of recent decisions that
seemed to shield Trump or members of his administration, though legal experts said the moves were intended to protect the office of the presidency, not its former occupant.
Trump's primary legal defence in the Swalwell suit has not rested on the Westfall Act but on a legal doctrine that argues the separation of powers in the U.S. Constitution broadly grants the president immunity during his time in office.
“Rousing and controversial speeches are a key function of the presidency. That is especially true when, as is the case here, the president is advocating for or against congressional action,” his
lawyer wrote in a May 24 filing.
In a footnote, the lawyer added: “Even if former president Trump is not covered by absolute immunity, as a governmental actor, the claims against him are also foreclosed by immunity under the Westfall Act.”
Attorney Anne Tindall of the advocacy group Protect Democracy said the department's filing contains a lot of signs that are “bad news for Trump.”
“Trump's role is even more limited than Brooks' is,” said Tindall, who is representing two Capitol Police officers in a separate lawsuit alleging Trump incited the riot.
“Brooks has a role in the certification. He has a vote in Congress. DOJ concluded that the conduct at issue in the litigation is not sufficiently related to his vote,” Tindall said.
“Here, Trump has no role at all.”
On Thursday, U.S. Congress approved emergency funding to replenish the Capitol Police and bolster security after the riot.
The US$2.1-billion bill was passed by the Senate by a vote of 98-0. The House of Representatives, which had previously passed its own $1.9-billion bill, then promptly approved the Senate version by a vote of 41611, clearing the way for Biden to sign it into law.
The bill would provide $521 million to reimburse National Guard units deployed for months to the Capitol following the riot and $300 million for increased security measures at the site.
It also would provide $71 million for the Capitol Police to cover overtime costs, hire new officers and other expenses and $35.4 million for that force's mutual-aid agreements with other law enforcement jurisdictions to help in emergencies.
About half the money in the bill will go toward evacuating Afghans who assisted U.S. military forces in Afghanistan over the past two decades, as America draws down its mission there.