Mo Brooks, the January 6 Riot, and the Federal Tort Claims Act

Today we are discussing a lawsuit filed by Representative Eric Swalwell (D-CA) against Representative Mo Brooks (R-AL), in which Swalwell alleges that Brooks conspired with former President Trump to overturn the results of the 2020 presidential election and to incite a mob to storm the Capitol on January 6, 2021. Brooks has responded by asking the House Administration Committee and House Counsel’s office to submit the complaint, pursuant to 28 CFR § 15.2, to the Department of Justice for purposes of the Attorney General’s certification that Brooks was acting within the scope of his employment when he committed the acts alleged therein. As we have discussed before (see here and here), the effect of such certification under the Federal Tort Claims Act (FTCA), if sustained by the court, is to substitute the United States as the defendant with respect to any tort claims asserted against the federal official. In the case of the tort claims against Brooks, the FTCA would then require dismissal of those claims altogether because they are not ones for which recovery against the United States is authorized.

The allegations against Brooks appear to fall into two primary categories: (1) tweets that he sent prior to January 6 which called into question the election results, claimed that Congress could and should reject those results, and promoted his own participation in the so-called “stop the steal” rally on January 6; and (2) his speech to Trump supporters at the January 6 rally on the Ellipse, during which (as summarized in Swalwell’s complaint) “Brooks told the attendees at the rally that their country was literally being taken from them, that the scale of wrongdoing was of historical proportions, that it was time to start ‘kicking ass,’ and that the individuals who were there that day had to be ready to perhaps sacrifice even their lives for their country.” Complaint ¶ 84 (emphasis in original). After this, of course, some of the rallygoers proceeded to march to the Capitol, illegally enter it, and engage in other unlawful conduct.

Before considering the FTCA issue, two observations are in order. The first is that not all of the claims against Brooks are tort claims (there are two federal civil rights counts) so even if it is certified he was acting within the scope of his employment that will not be sufficient to have Brooks dismissed from the case entirely. The second is that it is by no means clear any of Swalwell’s claims state viable causes of action against Brooks, regardless of whether the FTCA applies. Brooks undoubtedly made numerous false claims about the 2020 election and engaged in reckless demagoguery to boot, but I am skeptical that this would (or constitutionally could) translate into liability for the acts of the mob on January 6. For purposes of analysis, however, we will assume that Swalwell has stated viable causes of action against Brooks.

The FTCA and Westfall Act

An initial question is whether Brooks, as a member of Congress, is an “employee of the Government” within the meaning of the FTCA (the pertinent provisions of the FTCA are also known as the Westfall Act). In E. Jean Carroll’s defamation suit against Trump, she argued (and the district court agreed) that the president did not fall within this definition and therefore is not protected by the FTCA/Westfall Act. An analogous (though not identical) argument could be made with respect to members of Congress, but it is unlikely to be a problem for Brooks here. Every court to consider the issue has found that members of Congress are covered by the FTCA, and the House Counsel and Justice Department have repeatedly taken that position. Swalwell may not even challenge it in this case.

The more significant issue is whether Brooks was acting within the scope of his employment when he engaged in the conduct alleged by the complaint. This is a question governed by the applicable state law (here the law of the District of Columbia). However, because states rarely have precedent that sheds light on the nature and scope of a congressman’s “employment,” federal courts have fashioned their own approach to this issue, one which (as we have noted before) has been highly favorable to congressional immunity.

The Covington High School Case

The most recent example is a case called Does v. Haaland, 973 F.3d 591 (6th Cir. 2020). In that case a group of students from Covington Catholic High School sued two members of Congress, Representative Debra Haaland (now the Secretary of the Interior) and Senator Elizabeth Warren, for defamation arising out of a viral video of a confrontation between these students and others, including some Native American activists, in front of the Lincoln Memorial in 2019. Both members of Congress tweeted about the incident, claiming (falsely, according to the complaint) that the students had harassed and taunted a Native American veteran while chanting “build that wall.” These tweets allegedly contributed to a campaign of severe online harassment against the students, which included “calls for their physical harm, expulsion, and for the public disclosure of their identities.” Id. at 594.

Haaland (represented by the House Counsel) and Warren argued that the students’ defamation and other tort claims were barred under the FTCA because their tweets, which were sent from an official congressional account (in Warren’s case) and from both official and campaign accounts (in Haaland’s case), were within the scope of their employment. The district court agreed and the Sixth Circuit affirmed the district court’s dismissal of the case against both congressional defendants.

Acknowledging that there was little Kentucky precedent on point (Kentucky being the applicable state law), the Sixth Circuit found that “out-of-circuit precedent involving situations closely aligned to the facts of this case strongly supports finding that these tweets were within the scope of Defendants’ employment as officers of the United States.” Id. at 600. The court cited decisions of the First, Fifth and D.C. Circuits in which members of Congress were held to be acting within the scope of their employment when they responded to press inquiries regarding a wide variety of subjects. The Sixth Circuit particularly emphasized a First Circuit case in which Senator Ted Kennedy was held to have been acting within the scope of his employment “when, in the course of responding to a reporter’s question pertaining to a bill he was sponsoring that addressed access to women’s health clinics, he said that anti-abortion organizations like the plaintiff had a ‘national policy [of] firebombing and even murder.'” Id. (quoting Operation Rescue Nat’l v. United States, 147 F.3d 68, 69 (1st Cir. 1998)).

The Sixth Circuit saw commonality in these case because “each comment constituted a condemnation of a political adversary’s public acts.” 973 F.3d at 601. The allegedly defamatory tweets by Warren and Haaland, like the statements made by Kennedy and others, “were made in the context of informing constituents of the Congressmembers’ views and as part of their advocacy — whether for or against– current legislation.” Id. Rejecting arguments that such “political” acts were outside the scope of official functions, the court noted that “the Westfall Act extends to these sort of ‘political’ activities because they are integral to a Congressmember’s duties to communicate with their constituents and publicly discuss political matters.” Id. at 602 n.4.

The court concluded that the tweets at issue were comfortably within the scope of employment:

     Far from being gratuitous, these tweets fit within the “wide range of legitimate ‘errands’ performed for constituents,” which includes “preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress.” Senator Warren and Representative Haaland sought to oppose the President and his legislative goals by putting on record their opposition to Plantiffs’ actions. Although the foregoing cases examining whether similar statements were protected by the Westfall Act largely preceded the advent of Twitter, social media websites are the “modern public square.” There is no meaningful difference between tweets and other kinds of public communications between an elected official and their constituents that have been held to be within the scope-of-employment under the Westfall Act.

Id. at 602 (citations omitted).

Now in my opinion the Sixth Circuit went a little far in condoning the tweets in question. I personally think that elected officials should aspire to not making political arguments by demonizing random groups of high school students and, if they must do so, I don’t think it is too much to ask that they not do it falsely. Nonetheless, the Sixth Circuit reached the correct result on the law.

Analysis of the Allegations against Brooks

This brings us back to the Swalwell/Brooks case. A number of commentators have weighed in to urge Attorney General Garland not to certify that Brooks was acting within the scope of his employment (see here and here). Many of their arguments, however, sound in political rhetoric which is irrelevant to the legal issue. For example: “Mr. Garland should emphatically reject Mr. Brooks’s request to make this certification, because our nation deserves a full accounting for those involved in the storming of the Capitol and any other assaults on our democracy.” This is not a consideration which the attorney general or the court can or should take into account under the FTCA.

On the face of it, Brooks has a strong argument that he was acting within the scope of his employment when he made comments, whether by tweet or public speaking, on the validity of the election results or the need for Congress to reject electoral votes. It has been suggested that his remarks at the January 6 rally fall outside the scope of official congressional activities because it was a political or campaign event. However, while the rally was undoubtedly “political” in the broad sense and in that it related to the outcome of a particular election, it also related specifically to an official congressional function– counting the electoral votes. Moreover, it was not the type of campaign event, such as a fundraiser, which by law and rule must be kept carefully segregated from official activities. Therefore, it is doubtful this fact should play much of a role in determining whether Brooks was acting within the scope of his employment.

Potentially more important is the allegation that Brooks “incited” or “conspired to incite” the January 6 storming of the Capitol. If it were alleged that Brooks knowingly participated in a plan to attack the Capitol (as, for example, the unsubstantiated claim that some members gave tours to rallygoers on January 5 for purposes of aiding them in the attack planned for the next day), this would certainly fall beyond the scope of his employment. It might be argued that Swalwell’s complaint, broadly construed, alleges just that, but it lacks well-pleaded facts to support such an interpretation. A more plausible reading of the complaint is that Brooks through his false and inflammatory rhetoric contributed to inciting the crowd to violent action and that Brooks knew or should have known it would have such an effect.

Is this enough to distinguish precedent and conclude that Brooks was acting beyond the scope of his employment? Perhaps, but it is not an easy call. On the one hand, Swalwell can argue that Brooks was not merely attempting to communicate with constituents or express his opinion on an important political issue; he was (allegedly) encouraging the crowd to engage in direct action to disrupt the counting of electoral votes. This might be enough to at least survive an initial motion to substitute the United States and get some discovery on the issue of Brooks’s intent.

On the other hand, Brooks can argue that there is no basis for an allegation that he expected or intended an attack on the Capitol or a physical disruption of the electoral vote process. Politicians often use violent or martial imagery in their rhetoric and courts cannot police the terms of political debate under the guise of a scope of employment determination. At most, Swalwell’s allegations support the conclusion that Brooks was encouraging the crowd to pressure Congress to reject electoral votes. Urging constituents and others to petition the government, even through angry demonstrations, falls within the scope of a congressman’s employment (or so he would argue).

Recall too that Warren and Haaland arguably knew or should have known that their allegedly false tweets could result in harassment or worse for the Covington high school students. The fortuity that Brooks’s rhetoric resulted in “worse” while theirs did not seems like a shaky basis for drawing a scope of employment distinction.

In short, this is not an easy case to find Brooks was acting beyond the scope of his employment. One thing is for sure, though. If House Counsel and/or the attorney general decide that Brooks was acting beyond the scope of his employment, this will set a precedent that will reverberate for some time to come. It could lead to a lot more people trying to sue members of Congress who like to run their mouths. Whether this is a good thing or not, I leave to you.