When Rep. Eric Swalwell, D-Calif., sued Rep. Mo Brooks, R-Ala., as well as former President Donald Trump, Trump’s son Donald Trump Jr. and Trump’s former attorney Rudy Giuliani, Brooks more or less claimed: “I work for the federal government, so I can’t be liable for helping plot an insurrection against it.”
And here’s the crazy part: Brooks’ defense might be successful.
Swalwell alleges that Brooks, acting in his personal capacity, conspired with Trump, Trump Jr. and Giuliani to undermine the 2020 presidential election and pressure Congress to reject the results of that election and that he acted to incite violence when he addressed the crowd that moments later violently stormed our nation’s Capitol on Jan. 6., saying, “Today is the day American patriots start taking down names and kicking ass.”
Well, kick democracy in the ass they did. Swalwell sued for, among other things, conspiracy to interfere with civil rights, in this case by trying to prevent Joe Biden and Kamala Harris from being certified as the winners of the election and from being able to hold their offices.
Brooks’ first response to the suit apparently was to try to avoid service of process. He then sued for criminal trespass after he was eventually served with Swalwell’s complaint.
Brooks now argues that he should be dismissed from the lawsuit or represented by the Justice Department because he was acting in his official capacity when he sought to subvert our democracy and propagated lies about a stolen or rigged or fraudulent election.
One of the weirdest parts is that legally Brooks may have a point.
One of the weirdest parts is that legally Brooks may have a point. In his defense, he cites a 1988 federal law, the Westfall Act, which provides that federal employees are immune from torts they committed “while acting within the scope of [their] office or employment.”
This immunity frankly makes a lot of sense, at least in most cases: We don’t want federal employees, who are often in the public eye and must make numerous high-profile decisions, to be plagued by nuisance suits based on their actions. Federal employees should not fear that by accepting their jobs they risk being on the fast track to bankruptcy as a result of paying to defend against tort suits.
On the other hand, there is a problem when federal employees can claim that virtually any action they take should be considered to be within the scope of their office or employment.
Here’s looking at you, Trump. The former president has defended himself against a defamation lawsuit by former journalist E. Jean Carroll by claiming he is immune from liability under the Westfall Act. Carroll alleged that Trump defamed her when he said that he did not sexually assault her. If Trump’s denial is false, his statement could give rise to liability for defamation. If the courts conclude that denying a claim of sexual assault that is alleged to have occurred before the president became president falls within the scope of the president’s office, then it is hard to think of what would fall outside the scope of the president’s office.
The good news for Brooks is that discussing an election, even if that discussion includes spewing lies and falsehoods, looks closer to the scope of his employment than, say, denying a claim of sexual assault. Brooks’ lies (my characterization, not his) about the election were “indisputably made in the context of and in preparation for” Congress’ counting of the electoral votes on Jan. 6, he argues. (By the way, Trump has also defended against Swalwell’s suit by alleging that he is immune from liability for the same reasons.) There is something desperately topsy-turvy about a scenario in which a federal officeholder, by virtue of his position of trust in the federal government, can obtain protection from a suit for seeking to undermine that same government. Brooks’ statements are harmful precisely because he holds a public office and a position of trust. Brooks isn’t your average Joe or your crazy neighbor who thinks the Covid-19 vaccines will turn you into a magnet — he is a member of the House of Representatives and wields a certain amount of power over this country. For him to use his position to peddle falsehoods and then claim protection from legal repercussions by virtue of that position seems beyond problematic. But the problem lies in where and how do we draw the line between what does and does not fall within the scope of a federal employee’s office or employment. If we offer federal employees too little protection, we open them up to nuisance suits that could bankrupt them. If we offer them too much protection, then the Mo Brookses of the world could escape legal liability for their alleged actions. But we cannot make a rule that fits just Brooks. The real solution for the deeper problem is, of course, to elect federal representatives who do not put us in this position in the first place.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
