Rep. Eric Swalwell of California sued former President Donald Trump, Rep. Mo Brooks of Alabama, former New York City Mayor Rudy Giuliani, and other MAGA Republicans in a civil lawsuit filed earlier this year for lying about the 2020 presidential election, inciting the mob that violently attacked the US Capitol Building on January 6, and causing pain and distress to those who were victims of the attack.
In a July 27 Twitter thread, legal expert Ryan Goodman lays out some of the reasons why a US Department of Justice memo issued that day is a positive sign for Swalwell’s lawsuit and others.
Goodman is a New York University law professor and a former Department of Justice special counsel, in addition to serving as co-editor of Just Security.
Goodman calls the DOJ memo a “clear-as-day signal” that Trump will “not be shielded from these lawsuits brought by @RepSwalwell, Capitol Police officers, and others for allegedly inciting” the “#Jan6 attack” in his July 27 thread. “Or any federal employee,” according to Goodman, are the “golden words” in the DOJ memo.
The memo reads, “Inspiring 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 Federal Employees Liability Reform and Tort Compensation Act of 1988, also known as the Westfall Act, protects federal employees from common law lawsuits while performing their duties.
However, it also allows civilians to sue for damages.
Goodman states the DOJ memo offers some “other signals” that Trump is “not shielded” by the Westfall Act “from these lawsuits.”
The memo points out that Trump’s January 6 rally “was a campaign event.”
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The memo reads, “Candidate Trump, who spoke later that day, put it bluntly on January 6: the rally was about whether ‘we win the election.'”
Brooks argued that speaking at Trump’s rally on January 6 was “official” government business, in an attempt to get Swalwell’s lawsuit dismissed.
The Department of Justice, on the other hand, stated that “Brooks’ logic goes too far.”
According to the DOJ’s July 27 memo, “Under his view, it is not clear what limit there would be to his legislative functions; so long as he could point to some desire on some part of his constituency, any purely electioneering or campaign activity would fall within the scope of his office or employment and require the United States to bear responsibility for any alleged tortious conduct.”
“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,” Justice Department civil attorneys said in a 29-page filing late Tuesday.
Brooks is also accused of inciting violence against the Capitol, which would be in violation of his responsibilities as a legislator.
Earlier in the day, House counsel Doug Letter issued a similar denial, noting that the House rarely intervenes in legal disputes between individual legislators, especially when they are unrelated to official House business.
Letter also included a letter from Rep. Zoe Lofgren (D-Calif.), the chairwoman of the House Administration Committee, urging the Justice Department to deny Brooks’ request for legal representation
Brooks’s double-whiff came on a day when feelings about the Jan. 6 attack were already running high.
Four hours of riveting testimony from police officers injured in the attack — in which they demanded accountability for lawmakers and Trump allies they said were responsible for the violence — pushed the issue back to the top of Washington’s agenda.
Attorneys for the Justice Department also said that if the allegations in Swalwell’s lawsuit are true, Brooks conspired with and instigated rioters to attack the Capitol, it would be so contrary to his official obligations that he couldn’t have been acting as a lawmaker.
Trump made another public statement, this time falsely claiming a left-wing role in the riots and repeating his discredited claims that the 2020 election would be stolen from him.
Trump’s lawyers have filed motions to dismiss Swalwell’s case against him, but no motions to have the United States government take over his defense. His lawyers have refused to explain their reasoning.