CONSPIRING TO INCITE AN INSURRECTION AGAINST THE UNITED STATES FALLS OUTSIDE THE SCOPE OF MO BROOKS’S DUTIES AS A CONGRESSMAN*
25 JULY 2021
Federal law, formerly part of the Ku Klux Klan Act, creates the right to sue people who conspire to use force, intimidation, or threats to prevent federal officials from carrying out their duties. Representative Eric Swalwell, Capitol Police Officers James Blasingame and Sidney Hemby, and Representative Bennie Thompson sued Trump and others, including Congressman Mo Brooks, for their January 6 conduct at the “Save America Rally.” Brooks’s involvement included his 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 crowd carried Brooks’s message to Capitol Hill and began the fight that same day, kicked some ass, and sacrificed blood, sweat, tears, fortunes, and lives. Facing various potential consequences for his conduct, Brooks later claimed “no one at the rally interpreted my remarks to be anything other than . . . a pep talk after the [ass] kicking conservatives suffered in the dismal 2020 elections” — no one, except the more than 500 rioters charged with federal crimes for breaching the Capitol, damaging property, and conspiring to prevent federal officials from carrying out their duties, who claim they were following direct orders.
And if that’s what Brooks meant at the stop-the-steal rally, why did he vote against certifying the election after what he acknowledges was the ass kicking Trump suffered in the 2020 election? In alphabetical order, he was the second of 139 representatives to do so.
The Pedestrian, Oil on Canvas, 32" x 48", Richard J Van Wagoner, Courtesy of Van Wagonner Family Trust**
In defense of the lawsuits, Brooks recently turned to a 1988 law known as the Westfall Act, part the Federal Tort Claims Act. He now claims his conduct was within the scope of his job as a congressman, he was simply representing the interests of his constituents who question the validity of the election, and his comments, quoted above, referred only to the upcoming 2022 and 2024 elections.
The Westfall Act was recently in the news. In the mid-90s Trump raped E. Jean Carroll in a Bergdorf Goodman dressing room, Carroll alleged. Her allegation against then private citizen Trump came to light after he was elected and sworn in as president. As Trump does when women credibly accuse him of sexual assault, he declared Carroll a “total liar.” Despite photographic evidence to the contrary, he went on to claim they’d never met and defended his personal honor by assuring that Carroll fell outside the “type” of woman he would be interested in (raping?). He made the denials to two news outlets and issued a written statement claiming her accusations were “totally false,” politically motivated and to sell a book.
In November 2019, Carroll sued Trump in New York state court for defamation, seeking unspecified damages including punitive damages for the libel and slander. Trump did everything he could to persuade the state court judge to dismiss the lawsuit, without success. Rather than jump on the opportunity for self-vindication by producing globs of DNA — certain proof that Carroll truly fell outside the “type” of women Trump would be interested in (raping?), Trump had Barr try to buy time and, possibly, terminate the lawsuit against his boss. If it works, Carroll’s defamation suit against Trump will come to a premature, abrupt end. On September 8, 2020, Barr’s Department of Justice filed a motion in the Southern District of New York federal court to substitute the United States for Trump in Carroll’s pending state-court defamation case against Trump. If the court grants the motion, the Department of Justice would be taking over the defense, the United States will substitute for Trump as defendant, and the case would be dismissed because the United States has not waived its sovereign immunity for claims of defamation.
Roadkill (originally titled Waiting to Exit), Oil on Panel, 35.5" x 46.5", 1990 (the roadkill and birds were added later), Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
In a recent Op-Ed in the Boston Globe, Merrick Garland’s insurrection ruling and democracy’s destiny, constitutional law professor Lawrence H. Tribe asserts “[t]he attorney general should not let Mo Brooks off the hook for his roll in the insurrection.” I pick up where Professor Tribe criticizes Attorney General Garland’s support of the prior attorney general’s position in the Carroll case:
Attorney General Merrick Garland confronts a choice that is more than just career-defining. He must answer a question arising out of one of the lawsuits surrounding the Jan. 6 insurrection that is pivotal for the rule of law in the United States. That question is whether officials of the US government, bound by oath “to support [the] Constitution,” and, in the case of the president, to “take Care that the Laws be faithfully executed,” can be said to be acting within the bounds of their elective offices even when they foment violent insurrection against the laws that ensure the peaceful transition of power. If the attorney general decides to treat such action as merely one way of discharging official duties, then self-government will become a mirage, and those who are guilty of trashing it will have been placed beyond the reach of legal accountability to those they injure. That would mean that popular sovereignty is dead and the twin principles that no one is above the law and that every legal wrong deserves a remedy might as well be tossed into history’s dust heap.
The Biden administration and Garland have repeatedly voiced dedication to those principles and to democracy’s survival. That’s why many of us were dismayed when Garland approved the filing of a brief supporting former president Donald Trump’s implausible claim that he was merely performing an “official duty” to preserve his personal reputation and credibility as president when he assaulted the integrity and truthfulness of E. Jean Carroll, who had accused him of rape before he became president. Supporting that bold claim meant that Carroll’s suit was in reality a suit against the United States. It was therefore a suit that called on the Justice Department to intervene on Trump’s behalf . . . .
It was unsurprising to see then-Attorney General William Barr take that position. But why did Garland feel obliged to stick with it even after the Jan. 6 insurrection on the US Capitol should have made absolutely clear the danger of its implications? To be sure, demonstrating the department’s independence from politics is important. But once the department has strained the president’s job description to include defaming a private citizen to protect that president’s image, it’s a perilously short step to the shocking position that a president’s job extends to fomenting a coup to hold onto power after losing an election.
Garland should draw a bright line between a case like Carroll’s — where he has already stretched the Westfall Act too far — and cases in which the president and other public officials are sued by those injured in the insurrection. On no plausible reading of the Westfall Act, or any other law, can the president and his cohort be said to have been “just doing their jobs” when they rallied an angry mob to the Capitol to overturn the election.
On July 5, the D.C. Federal District Court, in which the three major insurrection-related lawsuits are pending, ordered the United States, the House of Representatives, and Democratic Representative Eric Swalwell of California, the plaintiff in one of those lawsuits, to respond by July 27 to a petition by Republican Representative Mo Brooks of Alabama copying Trump’s invocation of the Westfall Act in Carroll’s case. Brooks has asked the Justice Department to certify that he was acting within the scope of his congressional office in joining Trump, former New York City mayor (and former lawyer) Rudy Giuliani, and others in addressing the angry, agitated, and partly armed mob assembled in front of the White House on Jan. 6.
I hope the rumors that the department will issue the requested Westfall Act certification are groundless. For the department to do so would be a profound legal misstep. Even if Trump’s defense of his personal reputation by lying about the alleged rape and besmirching the character of his accuser are deemed part of his job description — a stretch in itself — it boggles the imagination to suggest that Brooks was performing his job as a member of Congress by helping the president thwart Congress’s discharge of its constitutional responsibility to certify the results of the presidential election in which the incumbent had lost. The Carroll stretch transforms a private transgression into a public duty. The Brooks stretch transforms an attack on Congress into a congressional obligation. No amount of emphasis on the fact that Brooks was using his congressional staff to help him draft his incendiary remarks and otherwise wrap himself in the garb of his official post can make that dog hunt.
Even on Brooks’s own rather fanciful description of what he was doing at Trump’s request, he isn’t entitled to use the shield of the Westfall Act. The petition he filed on July 2 claims that, when he spoke of the proceedings underway in the Capitol as a theft of the presidency and urged the mob to “kick ass,” he was merely telling it to fight hard to take back Congress in 2022 and the White House in 2024. That’s ridiculous. But even if it were true, his own words would render the Westfall Act inapplicable. Judicial precedents make clear that political campaigning falls entirely outside the immunity the act provides to federal officials.
Moving Silhouettes, Oil on Panel, 24" x 32", Richard J Van Wagoner, 1988, Courtesy Helen Bero-Van Wagoner and Richard A. Van Wagoner**
In any event, the law is clear that the District Court — and the Appeals Court for the D.C. Circuit and Supreme Court, if this matter reaches them — are bound at this stage of the lawsuits against Trump, Brooks, and Giuliani to treat the detailed allegations of the complaints as true. And, in these cases, this means treating as true the claim that the defendants were attempting to undo the results of a free and fair presidential election.
If Garland comes even close to suggesting that the elected head of the executive branch and those members of Congress so beholden to him that they will join him in his crusade to “stop the steal,” as the president put it, are to be shielded by the Justice Department from liability — whether civil or criminal — for seeking to prevent Congress from peacefully certifying an election replacing that chief executive with a successor, our system of government will be in mortal peril. And it would be folly for Garland to pretend that saying Brooks was acting within his authority still leaves open the possibility of denying that Donald Trump was acting within his when that question is teed up for decision, as it shortly will be in all three cases. Brooks’s basic defense, after all, is that he — like the mob he was addressing — was just doing Trump’s bidding. If suing Brooks amounts to suing the federal government, then suing Trump does too. But to embrace that proposition is to embrace the quintessential dictatorial premise that the chief executive is the state. And to do that is to bring the American experiment in self-government to a tragic end.
*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