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. Continue reading “Mo Brooks, the January 6 Riot, and the Federal Tort Claims Act”