DOJ Increases the Odds Trump Will Be Held Accountable

Several lawsuits are pending against Donald Trump, a/k/a Der Trumpfuhrer and his acolytes in Congress who participated in the "rally" that preceded the assault on the U.S. Capitol by Trump cultists.  One such is the cretin GOP Rep. Mo Brooks of Alabama who has admitted he wore body armor to the event thereby dispelling any claim that a peaceful, lawful event was what was anticipated.  Brooks and Trump are both claiming that they are protected from the lawsuits since they were performing  duties as the incited a riot and an insurrection that sought to block the certification of Trump's loss in the 2020 election.   Indeed, Trump has argued through his sleazy attorneys that none of his actions as president can be subjected to legal constraint, underscoring that he has always viewed himself as a would be dictator. The U.S. Department of Justice has filed a brief that politely calls those arguments out for what they are: utter bullshit.  A column in the Washington Post looks at how the DOJ action is very bad news for Trump, Brooks and others.  Here are highlights:

Donald Trump managed to evade legal accountability throughout his presidency. That might be about to change — and the newest sign comes in a brief filed by the Justice Department. It doesn’t directly address the former president, yet has ominous implications for his ability to avoid responsibility for his role in the Jan. 6 insurrection.

The Justice filing came in a lawsuit in which Rep. Eric Swalwell (D-Calif.) and a number of Capitol Police officers have sued Trump and others for their roles in the insurrection. One of those named in the suit, Rep. Mo Brooks (R-Ala.), claimed that he is immune from personal liability under a law known as the Westfall Act, which shields federal officials acting within the scope of their employment.

U.S. District Judge Amit P. Mehta asked for the Justice Department’s position, and, in a filing Tuesday, the department resoundingly rejected Brooks’s view. This is a correct — indeed, an unavoidable — interpretation of the law. It is a view that is directly relevant to Trump’s potential liability in the Swalwell lawsuit and other pending litigation, and a welcome departure from the position endorsed by the Justice Department in the defamation lawsuit filed against Trump by writer E. Jean Carroll.

In the Carroll case, the department accepted Trump’s argument that his disparaging comments about Carroll while he was president were within the broad scope of his responsibilities. . . . . I strongly disagreed with that decision: Accusing someone of lying about your actions before you became president, as Trump did with Carroll’s rape accusation, cannot automatically fall within the scope of your presidential employment.

In the Swalwell suit, the department adopted a narrower and, I believe, more legally defensible, stance about when federal employees are immune from suit.

The department first invoked Brooks’s own “defense” that his appearance at Trump’s Jan. 6 rally before the insurrection was “campaign activity,” not part of his official position: He was trying to get Trump declared the winner of the 2020 election and to promote GOP wins in 2022 and 2024. That was, the department properly concluded, political activity, not remotely covered by any immunity.

Even if Brooks’s appearance was not deemed campaign-related, the department added, he still is not entitled to immunity because he was accused of violating federal law — by definition, not part of his job. “Instigat[ing] a violent attack on the U.S. Capitol … plainly could not be within the scope of federal employment,” the brief said.

Where does that leave Trump, who is also a defendant in the lawsuit and has also asked that it be dismissed? Not in great legal shape, in my view.

[T]he department’s forceful conclusion was that Brooks’s alleged actions — conspiring to “injure members of Congress and Vice President Pence,” “disrupt the peaceful transfer of power,” or otherwise ensure Trump’s installation as the next president — cannot qualify as part of Brooks’s official job. That irrefutable logic is equally applicable to Trump.

Tellingly, the department’s brief said, “Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative — or any federal employee,” a category manifestly including the president himself.

Trump, in asking the judge to dismiss the case against him, referred to the Westfall Act in a footnote, arguing that “the allegations arose out of his [exercise] of political speech, clearly within the scope of his employment (i.e., ensuring the faithful execution of the laws and carrying out his other Constitutional duties).” Then he made an even more jaw-dropping claim: “The Constitution Forecloses This Court from Exercising Jurisdiction Over President Trump for Actions Taken During His Presidency.”

But, as Swalwell and other plaintiffs argue, Trump went far beyond giving a controversial speech. He insisted that he had won reelection regardless of what anyone said and stirred up a violent, partly armed and visibly angry mob and aimed it at the Capitol to disrupt the official counting of electoral votes. He stood by and even praised the mob as it grew violent, rejecting requests to help those under assault.

Inciting an attack on Congress “is not within the scope of employment of … any federal employee,” the department reminded us, and Trump, in its brief. That single word, “any,” marks the difference between a president and a dictator.