Representative Eric Swalwell sued Trump, Brooks, Jr., and Giuliani. The lawsuit makes two statutory (Ku Klux Klan Act) claims and seven tort (personal injury) claims for the January 6 conduct at the Ellipse and subsequent events at the Capitol. A law authorizes federal employees who were acting within the scope of their office or employment at the time of the conduct to have the United States step in their shoes as tort defendants and to defend the lawsuit, absolving them of liability. Body Armor Brooks sought certification from the DOJ that he was acting within the scope of his office or employment on January 6. Brooks’s involvement included incendiary comments in support of Trump’s demonstrably false claim that he won the election, to “stop the steal.” They included:
“start taking down names and kicking ass”
“our ancestors” sacrificed their “blood their sweat, their tears, their fortunes and sometimes their lives”
Was the crowd “willing to do the same”
“Are you willing to do what it takes to fight for America”
“carry the message to Capitol Hill”
“the fight begins today”
The DOJ’s July 27, 2021 Response, which came out the day before the news reported on Brooks’s admission that he wore body armor to the event, declined his scope-of-employment certification petition.
Untitled,Acrylic on Panel, 26.5" x 35", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
In essence, the Response argues that Brooks’s January 6 conduct was campaign activity which falls outside the scope of a congressman’s office or employment. Even if the court disagrees that the conduct was campaign activity, the Response entreats the court to deny the petition because instigating an attack on the United States Capitol as alleged in the complaint would fall outside the scope of a congressman’s office or employment – yes, it had to be said – and therefore the court could not certify the request unless it also found the conspiracy-to-incite allegations of the complaint to be untrue.
Using Brooks’s own words and conduct – not including that Brooks wore body armor to the rally – the DOJ’s Response is a resounding rejection of Brooks’s position that is readily accessible to everyone, regardless of legal training. A link to the government’s filing is below. It portends poorly for Trump when he files his own petition to hide behind the dubious claim he was acting within the scope of his office or employment on January 6 at his self-styled campaign event. And Jr. and Giuliani, who were not employees of the federal government at the time, have no right even to attempt to evade responsibility my making such a claim.
Las Vegas, Acrylic on Panel, 26.5" x 35", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
In sum, the Response explains:
“The record indicates that Brooks’s appearance at the January 6 rally was campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections. Members of Congress are subject to a host of restrictions that carefully distinguish between their official functions, on the one hand, and campaign functions, on the other. The conduct at issue here thus is not the kind a Member of Congress holds office to perform, or substantially within the authorized time and space limits, as required by governing law. . . . Indeed, although the scope of employment related to the duties of a Member of Congress is undoubtedly broad and there are some activities that cannot be neatly cleaved into official and personal categories, Brooks’s request for certification and substitution of the United States for campaign-related conduct appears to be unprecedented. And in a variety of contexts involving state and local elected officials, courts have routinely rejected claims that campaigning and electioneering activities fall within the scope of official employment. Brooks thus has not sustained his burden of demonstrating that his conduct at the January 6 rally was undertaken in his official capacity.
“In addition, the Complaint alleges that Brooks engaged in conduct that, if proven, would plainly fall outside the scope of employment for an officer or employee of the United States: conspiring to prevent the lawful certification of the 2020 election and to injure Members of Congress and inciting the riot at the Capitol. Alleged action to attack Congress and disrupt its official functions is not conduct a Member of Congress is employed to perform and is not “actuated . . . by a purpose to serve” the employer, as required by District of Columbia law to fall within the scope of employment. . . . Thus, if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that he did not engage in the conspiracy and incitement alleged in the Complaint.
“Finally, the Court should deny the petition as to Counts 1 and 2 of the Complaint because they are not subject to the Westfall Act at all. Those claims seek to recover for alleged violations of 42 U.S.C. §§ 1985 and 1986, and the Westfall Act does not reach claims based on “a violation of a statute of the United States.”
Now it’s up to the judge.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers