The Justice Department has declined Republican Rep. Mo Brooks’ request to defend him against a lawsuit that accuses him of inciting the Jan. 6 attack on the Capitol building.

The lawsuit was filed by Democratic Rep. Eric Swalwell in March and names Brooks, former President Donald Trump and attorney Rudy Giuliani as defendants over their participation in a “Save America” rally near the White House on the day Congress was certifying Joe Biden’s election win as the 46th president of the United States.

Swalwell, who is also suing Brooks and Trump in a private capacity, said the defendants called on their supporters to Washington, D.C., after failing to overturn the election results through litigation.

The California Democrat said they used inflammatory rhetoric such as “Stop the Steal” at the rally to urge their supporters to march over to the Capitol building while both houses were in session.

In response to the lawsuit, Brooks last month submitted a request to the Justice Department seeking its representation under the Westfall Act, stating that he was acting within his position as a House representative at the time of the alleged conduct.

The Justice Department declined his request on Tuesday, stating in a filing that “it cannot conclude that Brooks was acting within the scope of his office or employment as a Member of Congress at the time of the incident out of which the claims in this case arose.”

“In light of the Department’s declination, the United States should not be substituted as a defendant in this action,” it said.


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The lawyers concluded that Brooks on Jan. 6 was participating in a campaign activity, which is not part of the business of the United States.

“Members run for re-election themselves and routinely campaign for other political candidates. But they do so in their private, rather than official capacities,” they said.

The department continued that the complaint alleges a conspiracy that would be clearly outside the scope of official business.

“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 — and thus is not the sort of conduct for which the United States is properly substituted as a defendant,” it said in the legal filing.

Earlier Tuesday, the House of Representatives also declined Brooks’ request to intervene in the case, saying in a three-page letter that “it is not appropriate for it to participate in the litigation.”
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