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”

Could Trump be held Liable for Infecting Others?

What seems like a lifetime ago (i.e., sometime in September) there was controversy about the Justice Department’s decision to intervene in a state court defamation suit against President Trump brought by E. Jean Carroll, a woman who has accused Trump of sexually assaulting her in the 1990s, for statements Trump made publicly about Carroll during his time in office. According to Carroll’s lawsuit, Trump defamed her by (among other things) falsely asserting that she had invented her accusation for political reasons or in order to sell books. The Justice Department filed a certification under the Westfall Act that these defamation claims fell within the scope of Trump’s employment as president, which resulted in the case automatically being removed to federal court. Unless Carroll is able to successfully challenge the certification before the federal court, her case becomes one against the United States, rather than Trump personally, and will ultimately be dismissed because under the Federal Tort Claims Act the United States retains sovereign immunity for intentional torts.

Although it was widely claimed that DOJ was acting improperly by intervening to protect Trump’s personal interests, even many of the president’s sharpest critics grudgingly acknowledged that this was not the case. As I pointed out on Twitter and in the press, DOJ’s action was most likely correct and certainly reasonable under existing case law. The fact that a woman who was (allegedly) defamed by her (alleged) rapist could be without any remedy for defamation because the rapist was a federal official when he made the defamatory statements is counterintuitive and morally appalling, but (for reasons we have previously discussed) it is the law. The key legal question is whether Trump’s statements are considered to have been made within the scope of his employment, a determination that is made under the governing state law and will most likely be made in Trump’s favor.

Now we may face a different tort question arising from Trump’s positive test for Covid-19 and allegations that he held or attended various events knowing that he and/or others had tested positive or likely were positive and that he failed to take appropriate precautions to protect guests and workers at these events from possible infection. As suggested by @jedshug on Twitter,  individuals infected by Trump or at events he sponsored could seek to sue him for recklessly endangering their health. I have no idea whether there would be a viable cause of action in any state where such infections might have occurred, but for arguments sake let’s assume there is.

The analysis of such claims would then differ depending on the nature of the “super spreading” event in question. If it was an official event, such as the White House ceremony announcing the nomination of Amy Coney Barrett to the Supreme Court, it seems likely that Trump’s actions would be considered to be within the scope of his employment and therefore the United States would be substituted as a defendant in any suit brought against him. Unlike the defamation claim brought by Carroll, though, the plaintiffs in such cases would not necessarily be out of luck. They could still recover damages against the United States because torts involving negligence or recklessness are not barred by the FTCA. (There are, however, other potential obstacles to recovery, including whether the claims were grounded in official acts for which the president enjoys absolute immunity).

On the other hand, Trump’s attendance at political fundraisers would most likely not be considered to be within his scope of employment because these are by definition nonofficial and personal in nature. One can imagine the argument being made that some aspect of Trump’s attendance should be considered within the scope of his employment and therefore the Westfall Act and FTCA applied. While it would be difficult to fully appraise such an argument without knowing the precise claims made and the state law that governs, my sense is that this would be pressing the outer bounds of scope of employment even under the existing case law.

As an example, back in the day there was a congressman from South Dakota named Bill Janklow who tragically killed a motorcyclist while driving to his home from an event elsewhere in the state. Not only did Janklow violate the speed limit and disregard a stop sign, but he had a long history of prior driving citations. He was convicted of reckless driving and manslaughter for his actions. Nonetheless, when the motorcyclist’s family brought suit against him, the court upheld DOJ’s certification that he was acting within the scope of employment. The fact that Janklow was acting in a reckless and even criminal manner, the court found, was not relevant; what mattered was that the event Janklow had attended (a ceremony honoring Korean war veterans) constituted congressional business and “[i]is readily foreseeable that a Congressman serving a district as vast and rural as South Dakota would drive an automobile when commuting between his office and meetings with his constituents.”

Had Janklow been returning from a political fundraiser or campaign event, however, the result would likely have been different. As the former head of the federal torts claims branch at DOJ, Jeffrey Axelrad, told Roll Call at the time, the department would not certify that a lawmaker was acting within the scope of his employment if he was in a traffic accident on the way back from such a political event.


Why It is Pointless to Sue a Member of Congress for Defamation

        The D.C. Circuit just threw out the defamation suit filed by U.S. Marine Sergeant Frank Wuterich against Congressman John Murtha.  Wuterich alleged that Murtha, in a series of interviews with the media, made false and defamatory comments regarding the conduct of the squad led by Wuterich in Haditha, Iraq, in 2005.  Specifically, Murtha, according to the complaint, suggested that Wuterich and his squad were responsible for the “cold-blooded massacre” of Iraqi civilians.  

            Those familiar with a Supreme Court case called Hutchinson v. Proxmire, 442 U.S. 111 (1979), might assume that Wuterich would be entitled to his day in court.  In Hutchinson, the Court considered whether Senator Proxmire enjoyed constitutional immunity from a tort action brought by a research scientist who alleged that Proxmire had injured his reputation by disparaging, through a speech and press release, the scientist’s federally-funded research (into certain animal behaviors) as a waste of taxpayer money.

            The Court concluded that the Speech or Debate Clause did not protect Proxmire from the lawsuit.  The protections of the Clause are limited to “legislative activities,” and the Court found that “[w]hatever imprecision there may be in the term ‘legislative activities,’ it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber.”   In reaching this conclusion, the Court relied heavily on the fact that Members of the British Parliament, at the time the Constitution was drafted, were privileged for remarks made in Parliament, but not for the republication of those same remarks elsewhere.

            The Court also quoted the following from Justice Story’s Commentaries on the Constitution:  “No man ought to have a right to defame others under the colour of a performance of the duties of his office.  And if he does so in the actual discharge of his duties in congress, that furnishes no reason why he should be enabled, through the medium of the press, to destroy the reputation, and invade the repose of other citizens.  It is neither within the scope of his duty nor in furtherance of public rights or public policy.  Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat.” 

            After Hutchinson, a Member of Congress was entitled to immunity for statements made “in his seat,” i.e., on the floor or in committee proceedings, but was liable as other citizens for defamatory remarks in the press or elsewhere outside of the legislative body.  This state of affairs changed, however, in 1989 when Congress passed the Westfall Act, which among other things extended existing tort protection for executive branch officials to “officers and employees” of the “the judicial and legislative branches.” 

           As a result of this legislative change (apparently made without much notice or discussion), Members of Congress were made immune from liability for torts committed within the scope of their office or employment.  The key question becomes whether an alleged tort was within the scope.  The initial decision on this question is made by the Attorney General (which presents some interesting separation of powers questions).  The Attorney General’s certification that the Member was acting within the scope constitutes prima facie, but not conclusive, evidence in a judicial proceeding.  If the court finds in accordance with the certification, the Member is dismissed as a defendant and the United States is substituted.  For defamation and similar torts, this is fatal to the plaintiff’s case because such torts cannot be prosecuted against the United States. 

            One might think, per Justice Story, that a Member of Congress is not acting within the scope of his or her office when making “false charges” or “defamatory imputations” to the press.  The courts, however, have found otherwise, finding that a Member’s communications with the press are generally within the scope of employment.  See, e.g. Operation Rescue Nat’l v. United States, 147 F.3d 68 (1st Cir. 1998) (Senator’s  remarks to a group of reporters following a campaign fundraiser); Williams v. United States, 71 F.3d 502 (5th Cir. 1995) (Representative’s interview on a local television station); Chapman v. Rahall, 399 F.Supp.2d 711 (W.D. Va. 2005) (same). 

            It is very difficult to define the outer boundaries of the “job” of a Member of Congress.  Almost anything the Member does may have an impact on his relationship with his constituents.  Even matters which are indisputably personal, if they become a matter of media inquiry, can impact the Member’s image and thus affect his ability to effectively represent his constituents.  This, at least, was the reasoning of Council on Am Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006), where the court stated: “A Member’s ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents in the Congress.  In other words, there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.” 

            Given this precedent, there was never a realistic possibility that Wuterich would be able to maintain his lawsuit against Murtha.  Although the public may be surprised to learn that Members of Congress have, in effect, a license to defame private individuals, such is the current state of the law.  There are, moreover, good reasons why.  If Members of Congress feared constant lawsuits from individuals whom they criticized, there would be a significant chilling effect on their communications with constituents and the general public. 

            On the other hand, there ought to be some mechanism by which individuals who have truly been defamed can obtain a measure of redress and restore their reputations.  The House, for example, should allow plaintiffs who are unable to pursue defamation lawsuits against Members of Congress because of the operation of federal tort immunity to file complaints with the Office of Congressional Ethics.  This would be an appropriate forum for the plaintiff to prove the falsity of alleged defamatory statements and to obtain redress for the reputational injury.