Rep. Mo Brooks has asked the Department of Justice to shield him from a civil lawsuit filed against the Alabama Republican for inciting a mob to storm the Capitol on Jan. 6 by telling them to “March to the Capitol” and start “kicking ass.”
How the DOJ answers the legal argument from Brooks could affect former President Trump, who is also named as a defendant in the same lawsuit. It could also affect how the department prosecutes hundreds of cases against the rioters themselves.
Brooks argues that he was acting in his official capacity when he spoke at the “Stop the Steal” rally and exhorted the crowd to start “kicking ass” over Trump’s false claims of a stolen election.
If the DOJ agrees that the lawmaker was acting within the scope of his work as a congressman when he spoke to the crowd, Brooks could receive immunity from the civil suit over his alleged role in the riot. The department faces a July 27 deadline to answer his argument.
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The prospect of the Justice Department providing legal cover for a Republican lawmaker accused of playing a role in starting the riot is already making some Trump critics uneasy.
Kristy Parker, who spent 15 years as an attorney in the department’s civil rights division, says she hopes the Biden DOJ will not sign off on Brooks’s argument but sees ominous signs in the agency’s recent trend of backing the previous administration’s claims in court combined with how it has historically interpreted scope-of-employment issues for government officials.
“I think they should find that Brooks is not within the scope of his employment when he is at a political rally with Trump, who in his capacity at that moment is not the president, but is actually a candidate at a campaign rally, talking about his failed candidacy and what he’s doing is exhorting people to go and physically disrupt an official government proceeding,” said Parker, now an attorney at the nonprofit group Protect Democracy, which is representing two U.S. Capitol Police officers in a similar lawsuit against Trump.
“This is the time really to draw a line between what is your official job as an elected official and what is not, in that exhorting people to violently disrupt official proceedings and lying about the election is not part of your job,” Parker said. “So I hope that that’s what they’ll decide, but I am concerned because of the long term trend, that they might not decide it that way.”
Brooks’s office did not respond when asked for comment.
