Merrick Garland gets warned against making 'a gross error' that would invite 'future insurrections'

Rep. Mo Brooks of Alabama, who spoke at former President Donald Trump's "Stop the Steal" rally in Washington, D.C. on January 6, is named in a civil lawsuit alleging that he incited the violent mob that attacked the U.S. Capitol Building that day. Brooks is asking the U.S. Department of Justice to intervene in the case, insisting that he did nothing wrong on January 6. And Washington Post opinion writer Jennifer Rubin, this week in her column, argues that Attorney General Merrick Garland should not side with Brooks.

The civil lawsuit that Brooks is facing was filed by Democratic Rep. Eric Swalwell and also names former President Trump, Donald Trump, Jr. and former New York City Mayor Rudy Giuliani.

At the "Stop the Steal" rally, Brooks urged supporters of then-President Donald Trump to start "kicking ass" in response to Trump's election fraud claims — which had been repeatedly debunked. Swalwell's civil lawsuit alleges that Brooks was inciting the January 6 riot with such rhetoric. But Brooks contends his actions were legally protected.

"On Tuesday," Rubin explains, "the Justice Department and the House of Representatives will file briefs explaining to a federal court whether each believes that Rep. Mo Brooks (R-Ala.) was acting within the scope of his employment when he allegedly incited the violent attack on the Capitol and sought to subvert the peaceful transfer of power on January 6. This sounds absurd, but in effect, Brooks is asking the Justice Department to certify that he was acting in the scope of his duties when he tried to overthrow the government."

Rubin continues, "If he succeeds, he would be immune from suit, and the Justice Department would step in on behalf of the government in civil suits arising from the violent insurrection. It would be a gross error and invitation for future insurrections if either the House or Justice Department agreed that Brooks is protected. How can encouraging a mob to disrupt the Electoral College tabulation possibly be within Brooks' duties? That would be akin to saying Gen. Robert E. Lee was acting within the scope of his duties in the U.S. Army when he attacked Union troops. Sedition is not within the scope of any official's duties."

Rubin goes on to make her point by quoting an op-ed by attorney Laurence H. Tribe, an expert on constitutional law, that was published in the Boston Globe on July 19.

Tribe wrote, "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."

Ethics expert Walter Shaub, who isn't quoted in Rubin's column, has also been weighing in on Swalwell's lawsuit and the arguments Brooks is making to the DOJ.

In a recent newsletter, Shaub noted, "Here's how this lawsuit could spark serious long-term consequences when it comes to holding political leaders accountable for wildly incendiary speech: Brooks has asked Attorney General Garland to certify that he was acting within the scope of his official duties as a member of Congress when he spoke to the crowd…. If Garland grants this request and persuades the court to agree, the certification would effectively immunize Brooks by dismissing him from the lawsuit and substituting the government as a defendant."

Shaub argues that "if Garland certifies that Brooks was acting within the scope of a congressional representative's duties, he will be legitimizing the incitement of a mob" and sending a "message to elected officials" that "they can act with impunity, even when their actions are inconsistent with the oath they took to support and defend the Constitution."

Rubin concludes her op-ed by warning that if Garland agrees with Brooks, he will be sending out a message that Trump and his allies are above the law.

"We need an attorney general to aggressively pursue facts and bring actions against Trump and his supporters where warranted," Rubin writes. "If not, Garland would have inadvertently affirmed Trump's argument that he was above the law."