During the last presidential administration, opponents of Donald Trump habitually criticized him for “politicizing” the Department of Justice. They claimed that he called for the DOJ and the FBI to investigate his perceived enemies and that he improperly meddled in the prosecutions and sentencings of loyalists like Roger Stone and Gen. Michael Flynn.
Joe Biden pledged to keep politics out of the DOJ, telling Jake Tapper with an air of high dudgeon that “It’s not my Justice Department. It’s the people’s Justice Department.”
What a whopper that was. The Justice Department is more politically motivated now than it’s ever been.
Biden has appointed defund-the-police zealots Vanita Gupta and Kristen Clarke to high-ranking posts at the DOJ – placing Gupta at the number 3 spot and Clarke as the head of the Department’s civil rights enforcement arm. Biden also has nominated gun control lobbyist and gun ban proponent David Chipman to head the ATF.
In April, the FBI conducted raids at the homes and offices of Trump lawyers Rudy Giuliani and Victoria Toensing.
In June, it filed a Voting Rights Act lawsuit against Georgia to overturn its new election integrity law – an “obvious[ ] political stunt” whose complaint “reads more like an op-ed in Mother Jones than a legal case,” said Dan McLaughlin in National Review.
And, of course, the DOJ has labeled all protesters who were present at the Capitol on January 6 as insurrectionists, domestic terrorists and white supremacists and is prosecuting them accordingly (as I wrote about here and here).
Its latest political move has to do with Democratic congressman Eric Swalwell’s lawsuit against Republican congressman Morris “Mo” Brooks and others for deliberately instigating the January 6 riot at the U.S. Capitol. Last week, Attorney General Merrick Garland refused to provide a routine “certification” that, under a special federal statute that applies to employees of the federal government, would have allowed Brooks to be dropped as a party from most of the claims in the case and the United States substituted as a defendant in his place.
By refusing to issue that certification to Brooks, Garland’s DOJ ignored well-settled law for what appears to be partisan political purposes, and left Brooks to fend for himself – and to incur what are sure to be crushing defense costs – in the action.
In March, Congressman Eric Swalwell filed suit against Brooks asserting that he conspired with President Trump, Donald Trump, Jr., and Rudy Giuliani to instigate the Jan. 6 attack on the Capitol and to prevent members of Congress, including Swalwell, from certifying Joe Biden as the winner of the 2020 presidential election.
To support these claims, Swalwell points to five post-election day tweets that Brooks sent out:
On November 5, 2020, Brooks tweeted that he “lack[ed] faith that this was an honest election” and said that as a House member, he would be “very hesitant to certify the results of this election if Joe Biden wins.”
Later that day, Brooks tweeted, “Count Every LEGAL Vote!”
On Nov. 19, Brooks retweeted a journalist who quoted him as saying that Congress has the “absolute right to reject the submitted electoral votes of any state,” and that Brooks stated, “I’m not going to put my name in support of any state that employs an election system that I don’t have confidence in.”
On Nov. 27, Brooks tweeted that, in his opinion, Joe Biden did not win a lawful majority of votes in Georgia, and that Congress therefore “should reject any Georgia submission of 16 electoral college votes for Joe Biden.”
On Jan. 5, Brooks tweeted that he would be speaking at the Stop the Steal rally the following day at the invitation of President Trump, and that he would “tell the American people about the election system weaknesses that the Socialist Democrats exploited to steal this election.”
Swalwell’s complaint also alleges that Brooks “incited the violence at the Capitol” on Jan. 6 by speaking at the Stop the Steal rally that day and saying the following:
We are great because our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives ….We are here today because America is at risk unlike it has been in decades, and perhaps centuries …. We are not gonna let the socialists rip the heart out of our country. We are not gonna let them continue to corrupt our elections and steal from us our God-given right to control our nation’s destiny …. Today is the day American patriots start taking down names and kicking ass! Now, our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives, to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you: Are you willing to do the same? My answer is yes. Louder! Are you willing to do what it takes to fight for America? Louder!! Will you fight for America?!
A federal statute called the Westfall Act provides that federal employees cannot be held liable for acts they undertake in the course of their official duties.
When a federal employee is sued for wrongful conduct, the Act empowers the Attorney General to certify that the employee “was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” Upon the issuance of this certification, the statute calls for the employee to be dismissed from the action, and the United States substituted as defendant in his or her place.
If, however, the Department declines to issue a certification, the case proceeds against the employee in his or her personal capacity.
In response to Swalwell’s lawsuit, Brooks submitted a request to the Department of Justice for certification under the Westfall Act that he was acting within the scope of his office or employment as a Member of Congress when he issued the subject tweets and spoke at The Ellipse during the Jan. 6 rally.
When the DOJ failed to respond to Brooks’ request, he petitioned the court to certify that he had been acting within the scope of his office or employment during the incidents alleged in the complaint. The court ordered the DOJ to respond to Brooks’ petition by July 27.
Last week, the DOJ filed its response to Brooks’ petition. In it, the DOJ asserted that that Brooks’ tweets and rally speech constituted “electioneering,” which is not within the job duties of a member of Congress.
For that reason, the Attorney General refused to issue the certification under the Westfall Act.
Whether an employee is acting within the scope of his employment is determined by the law of the state (or the District of Columbia) in which the relevant conduct occurred.
Since the challenged conduct here took place in Washington, D.C., the law there applies.
The Court of Appeals for the D.C. Circuit has been explicit that it does not take a narrow approach to “scope of employment” issues, but applies the test “very expansively and in essence ask[s] whether the defendant merely was on duty or on the job when committing the alleged tort.”
Further, the D.C. Circuit has explained that because a congressman’s “ability to do his job as a legislator effectively is tied … to the Member’s relationship with … his constituents,” activities that enhance that relationship will be deemed to be within the scope of the legislator’s employment.
In his petition, Congressman Brooks provided evidence that his tweets had been drafted by Brooks or his congressional staff and “issued from a congressional government building” during “normal congressional government office working hours” on “a congressional government Twitter account” using “congressional government electronic devices.”
More importantly, all of the subject matter of his tweets related to a matter of legislative concern election integrity – and a pending and critically important congressional issue: “whether to accept or reject electoral college vote submissions by various states” on Jan. 6 pursuant to the federal Electoral Count Act.
Since, under the D.C. Circuit’s standard, Rep. Brooks was clearly “on the job” when sending out his tweets, there simply was no legal basis for Attorney General Garland’s to have refused to issue the Westfall certification for those acts.
Similarly, Brooks’ speech at the Stop the Steal rally was performed within the scope of his employment.
On this issue, the D.C. Circuit’s decision in Council on American Islamic Relations v. Ballenger is instructive. In that case, the Council on American-Islamic Relations (“CAIR”) sued Congressman Cass Ballenger for defamation after Ballenger remarked that CAIR was the “fund-raising arm for Hezbollah” during a conversation with a reporter about Ballenger’s marital difficulties.
In analyzing whether Ballenger’s statement had been made during the scope of his employment, the D.C. Circuit explained that the proper test was whether Ballenger’s “underlying conduct,” not the substance of what he said, was the kind of conduct a Member of Congress was employed to perform.
And speaking at rallies is a common activity for legislators.
The list goes on. Did anyone think twice when these legislators participated in these rallies? Of course not, because speaking engagements such as these are a routine part of a legislator’s duties.
Moreover, under the controlling law in the D.C. Circuit, because Brooks’ tweets and speech were geared to appeal to his constituents, they fell comfortably within the scope of his authorized duties.
Under Ballenger, the substance of Brooks’ tweets and rally speech are entirely irrelevant to the question of whether he was acting within the scope of his employment at the time he gave it.
Nevertheless, all of his remarks had to do with whether, under the federal Electoral Count Act, Brooks would be lodging objections to the appointment of electors who he believed had not been “lawfully certified” by their state’s governor due to constitutional violations and perceived fraud.
The notion that talking about these objections placed Brooks’ actions outside of his congressional duties is risible since it has been a tradition of the Democrats to actually lodge such objections to Republican electoral votes in several presidential contests.
In 1877, the entire electoral delegations from Florida, Louisiana, South Carolina, Vermont, and Wisconsin – whose votes were won by Republican Rutherford B. Hayes – were challenged by Democrats.
In 1969, Senator Edward Muskie of Maine and Rep. James O’Hara of Michigan – both Democrats – objected to counting the vote of a faithless elector from North Carolina.
In 2001, members of the Congressional Black Caucus, also all Democrats, attempted to block Florida’s electoral votes, which had gone to Republican George W. Bush, from being counted, claiming “overwhelming evidence of official misconduct” and “deliberate fraud.”
Four years later, after election results indicated that Bush had won reelection against Democratic challenger John Kerry, Sen. Barbara Boxer and Rep. Stephanie Tubbs Jones – both Democrats – objected to Ohio’s electoral votes, which Bush had won, claiming widespread “irregularities.”
Most recently, at the 2017 joint session after the Trump-Clinton election contest, several Democratic House members challenged the results, claiming a “widespread violation of the law.”
Equally absurd is the DOJ’s contention that Brooks’ exhortation to “fight for America” during his speech at the Stop the Steal rally placed his conduct outside the scope of his congressional duties. That remark was obviously nothing more than a rhetorical flourish – and one that has been used time and again by those on the political left.
In 2016, Planned Parenthood pledged to “fight like hell” to protect women’s health. At the 2017 Women’s March, the participants vowed to “fight like hell” for women’s rights. In her farewell speech to the Senate, Barbara Boxer said, “A good leader knows when to pick up the gloves and fight like hell.” In 2017, Elizabeth Warren declared that Democrats need to “fight like hell” to stop Republicans from repealing Obamacare. Last June, Chuck Schumer proclaimed that Senate Democrats were going to “fight like hell” to pass the Justice in Policing Act. After Justice Ruth Bader Ginsburg died several months ago, Democratic Senator Richard Blumenthal promised to “fight like hell” to prevent the confirmation of a new justice before the inauguration of the next president. Rep. Adam Schiff said the same thing.
On none of these occasions was the phrase “fight like hell” ever perceived as a call for immediate, physical violence.
Perhaps realizing as much, the DOJ contended that Brooks’ actions were “not within the scope of the office or employment of a Member of the House of Representatives” because they constituted electioneering or campaign activity.
But how could Brooks’ tweets and speech about the election have been either electioneering or campaign activity when they occurred after Election Day?
Further, taken to its logical conclusion, the DOJ’s argument was that any discussion about election integrity and the certification of electoral votes would be permanently out of bounds for federal legislators. Such a rule is nonsensical, though, since the Twelfth Amendment and the Electoral Count Act specifically empower and obligate Congress to consider and debate that issue. Brooks was speaking to the crowd in large part about his duties as a U.S. congressman to certify the results of the 2020 presidential election.
In any event, under the governing law in the D.C. Circuit, even if Brooks had issued his tweets and given his rally speech out of a personal desire to see Trump declared as the winner of the election, his actions would still have been within the scope of his office or employment as long as at least some of his motivation was to enhance his relationship with his constituents.
Brooks says that was the case, and the DOJ hasn’t offered any evidence to disprove that assertion.
A quick review of some other cases in which the conduct of federal employees was found to be within the scope of their office or employment highlights how ridiculous it was for Merrick Garland to have denied Westfall Act certification to Rep. Brooks here.
It’s deranged that the federal employees in these cases were entitled to certification for their outrageous behavior, but that Mo Brooks — who simply exercised his First Amendment rights on Twitter and at The Ellipse — wasn’t because he dared express opinions unpopular with the political left.
In Gutierrez de Martinez v. Lamagno, the Supreme Court held that a party may request judicial review of the Attorney General’s scope-of-employment determination, since that certification is “the first, but not the final word” on whether the United States should have been substituted as a defendant.
Brooks has now done that. Today, Brooks asked the assigned federal judge – Obama-appointee Amit Mehta – to grant him the certification that was denied to him by the DOJ.
If Mehta denies the motion, Brooks can appeal to the D.C. Circuit, but that, of course, is the court over which Garland served before becoming Attorney General, including a seven-year stint as its Chief Judge between 2013 and 2020.
At his confirmation hearing for Attorney General, Merrick Garland pledged to “protect the independence of the Department [of Justice] from partisan influence in law enforcement.”
Instead he has politically turbocharged it.
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