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