Merrick Garland Needs to Show He Knows What Jan. 6 Was Really About

[maestrob]

July 18, 2021
By Donald Ayer, Danielle Brian and Norman Eisen

Mr. Ayer was a deputy attorney general in the George H.W. Bush administration. Ms. Brian is the executive director of the Project On Government Oversight. Mr. Eisen served as special counsel to the House Judiciary Committee during the first Trump impeachment.

When Mo Brooks took his oath of office as a U.S. representative, he swore to support and defend the Constitution. His official duties certainly don’t include what Mr. Brooks is accused of doing in a civil lawsuit pending in Washington federal court: helping to incite a mob to storm the Capitol on Jan. 6.

Representative Eric Swalwell, a California Democrat, sued Mr. Brooks, an Alabama Republican, and others for damages suffered as a result of their roles in the Capitol riot. Mr. Brooks has asked Attorney General Merrick Garland to certify that his actions on Jan. 6 were those of a government employee acting within the scope of his employment. The Justice Department must say if it will defend Mr. Brooks by July 27.

If the attorney general were to certify and the court agreed, Mr. Brooks would be dismissed from the lawsuit under a federal statute. The United States would be substituted as a defendant instead.

Mr. Garland’s choice is important in its own right, but it also carries ramifications for cases targeting possible official wrongdoing in the Trump era, including by the former president himself. 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.

The case arises from Mr. Brooks’s appearance at the “Save America” rally in Washington on Jan. 6. All Americans are entitled to petition their government under the Constitution.


But in our view, Mr. Brooks’s instructions went beyond these protections. He urged the assembled crowd to “fight for America” and “stop” at the Capitol, where the electoral transition would take place. “Today the curtain will be pulled back and American patriots will learn by their votes which Republican senators and congressmen have the courage to fight for America,” Mr. Brooks said. “Today Republican senators and congressmen will either vote to turn America into a godless, amoral, dictatorial, oppressed and socialist nation on the decline or they will join us and they will fight and vote against voter fraud and election theft and vote for keeping America great.” He added, “Today is the day American patriots start taking down names and kicking ass.” (In response to the suit, Mr. Brooks said he was talking in his speech about the 2022 and 2024 elections.)


We all know what happened next.

Determining when arguably wrongful conduct by a federal employee nonetheless occurred within the scope of his or her employment duties often involves a difficult exercise of judgment. The issue is not whether the employee committed a wrongful act — bad things can happen on the job. At the same time, not everything an employee does is within the scope of his job — as in the case of a mail carrier who takes his delivery vehicle on a joy ride far from his route and hits a pedestrian. Because Congress has expressly made the United States directly responsible for the wrongs of employees while they are doing their jobs, the attorney general and his delegates generally construe the scope of employment concept broadly (some would say too broadly to allow real bad actors in government jobs to be held to account).

For example, the Justice Department recently certified scope of employment in a suit brought by former Ambassador Gordon Sondland against former Secretary of State Mike Pompeo alleging that Mr. Pompeo reneged on a promise to cover Mr. Sondland’s impeachment-related legal fees. Whatever the merits of Mr. Sondland’s claims, the judgment whether to reimburse seems to be within the scope of Mr. Pompeo’s powers as secretary.

More controversially, during the last year of the Trump administration, the journalist E. Jean Carroll sued Mr. Trump in a state court in New York, alleging that Mr. Trump had defamed her in connection with allegations of rape she made in a 2019 book. The Justice Department certified that the disputed statements were made within the scope of Mr. Trump’s employment as president and William Barr moved the lawsuit to federal court. The court didn’t buy it, rightly holding that Mr. Trump’s statements have “no relationship to the official business of the United States.” The Justice Department appealed that ruling, and Attorney General Merrick Garland has elected to pursue the appeal and leave the ultimate decision on this issue to the court.

There can be no doubt that the case of Mr. Brooks’s behavior at the Jan. 6 rally is a very different kettle of fish.

For starters, House rules exclude broad categories of conduct from official duties; they include partisan campaigning or political activities like the dark money and privately funded event on Jan. 6. It is difficult to imagine an act that falls farther outside the scope of a sitting congressman’s official duties than what he is accused of doing: helping to provoke a crowd to lay siege on the center of our federal government, putting his fellow members at risk of physical harm and ultimately disrupting the vital constitutional process of certifying presidential election results.

The Constitution and laws of the United States are not, as Justice Robert Jackson once warned, a suicide pact. Certification that Mr. Brooks acted within the scope of his job would leave the United States government defending the right of its elected representatives to foment insurrection against itself.

The decision before the Justice Department could also have an impact on other cases, including those against Mr. Trump. He, too, is a defendant in Representative Swalwell’s suit over his incitement at the same rally. If Mr. Brooks is immunized, how long before Mr. Trump seeks the same? There is also the Georgia criminal investigation of Mr. Trump’s efforts to have state officials “find 11,780 votes.” He surely would point to any precedent Mr. Garland set here to argue that that was official, too. Who knows what other yet-to-be revealed conduct would be swept within this new safe harbor for wrongdoing?

Our future depends on our resolve in adhering to our basic democratic values — among them, that truth is a key to the functioning of our electoral system. And that demands that Attorney General Garland unequivocally reject any notion that a congressman is doing his job when he foments a riot based on lies in order to sabotage a legitimate national electoral process.

Donald Ayer, a former U.S. attorney in the Reagan administration and deputy attorney general in the George H.W. Bush administration, is an adjunct professor at Georgetown Law. Danielle Brian is the executive director of the Project On Government Oversight. Norman Eisen, executive chairman of the States United Democracy Center, was President Barack Obama’s ethics czar and ambassador to the Czech Republic, and served as special counsel to the House Judiciary Committee during the first Trump impeachment.

https://www.nytimes.com/2021/07/18/opin ... ime-weight