DoJ Ruling Could Undercut Trump’s Legal Defense; Federal Employees Who Incite Riots Are Not Protected
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DoJ Ruling On Arguments Made By Trump
WASHINGTON, D.C. (July 28, 2021) – A determination by the Department of Justice [DoJ] that a member of Congress is not covered by protections for federal employees for his January 6th speech which allegedly led to a riot could undercut arguments by former president Donald Trump that he likewise cannot be sued for injuries arising from his speech at that rally, suggests public interest law professor John Banzhaf.
Although legal precedent does provide broad protections for elected officials who are sued over their public speeches, the DoJ concluded that Mo Brook’s speech went beyond legally permissible boundaries.
It said that, contrary to his arguments, he is not effectively immune from a law suit filed by Rep. Eric Swalwell that accused Brooks, then-President Donald Trump, and others of fomenting the failed attack on Congress. He claimed the speech was within the scope of his official duties.
But the agency said 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 . . . 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.” [emphasis added]
It said in a court filing that Brooks’ appearance at the rally “was campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections.”
Although the DoJ decision carries considerable weight, the legal issue will ultimately be decided by a trial judge, and presumably be subject to review upon appeal, says Banzhaf.
Undercutting Trump’s Legal Position
This determination undercuts Trump’s legal position, but is far from decisive, the law professor argues, for at least three reasons.
First, in an unrelated defamation law suit against Trump, DoJ took the position that he cannot be sued from denying a sexual assault claim.
Naturally, the DoJ can now change the position it took when Trump was in charge, but it’s unclear how a judge would weight such back pedaling.
Second, a denial of an criminal accusation is obviously very different from a public oration.
Third, of course, while Brooks and Trump are both elected federal employees, there are clear distinctions, and presidents have traditionally been treated differently from all other federal employees.
Indeed, unlike Brooks, Trump is not asking DoJ to intervene in the law suit.
Instead, he simply argues that he has “absolute immunity” for actions taken while he was president – a position, many would argue, would effectively put him uniquely above the law.