Government

GOP Congressman Filed Affidavit Unintentionally Waiving His Own Immunity

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(Photo by Win McNamee/Getty Images)

While the media loves launching into a lot of shocked bellyaching over the size of Biglaw bills, it usually fails to grasp just how important it is for elite attorneys to take research down some fairly attenuated rabbit holes. It may add a few thousand to the bill to send a young associate off to look up the answer to “if we do X and they do Y and then wildly remote possibility Z shows up, what happens then?” but sometimes knowing the answer to that question can save the whole case.

Take, for example, the matter of Alabama’s Mo Brooks, who got so hopped up on rhetorically owning a lawsuit against him that he screwed around and nixed his own effort to secure immunity from suit.

Rep. Eric Swalwell brought a lawsuit against Brooks, among others, for stirring up the January 6 attack. He littered the complaint with quotes of Brooks telling the crowd, “Today is the day American patriots start taking down names and kicking ass!” Rather than just embrace the fact that he told a gathering of raving lunatics itching to hang Mike Pence that they should get started with the ass kicking, Brooks filed a lengthy affidavit explaining, “I am talking about ‘kicking ass’ in the 2022 and 2024 ELECTIONS!” See, it’s all about getting over the 2020 elections and “once we get and ‘take down’ their names, our task is to ‘kick their asses’ in the 2022 and 2024 election cycles,” the Alabama politician averred to a hypothetical audience of nitwits who don’t know full well what “taking down names and kicking ass” means. So much for legal interpretations based on commonly understood public meanings.

The only jury members Mo Brooks wants to see.

Unfortunately for Brooks, this attempt to twist his own words has ended up screwing him royally. As Mark Joseph Stern explains over at Slate, Brooks had simultaneously invoked the Westfall Act, the law that allows the Department of Justice to take tortious behavior committed by elected officials and sweep it under the broad tent of actions imputed to the United States — if the action was in furtherance of the official’s public duties, then the suit is really one against the government itself, and the government is immune. But when you state under oath that you were saying all those things as an act of campaigning as opposed to an act of governing…

As the Justice Department pointed out in its Tuesday filing, “activities specifically directed toward the success of a candidate for a partisan political office in a campaign context” are “not within the scope of the office or employment of a Member of the House of Representatives.” That’s because it is not the “business of the United States to pick sides among candidates in federal elections.” Representatives thus cannot invoke the Westfall Act’s protections when they are engaged in “campaign efforts.”

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And so ends another game of one-dimensional checkers. One can’t help but think a remotely competent attorney would’ve recognized the bind that affidavit would put him in and gone a separate path, given that “immunity” is always better than calling your adversary stupid. As it turns out, Brooks is a lawyer himself.

And thus we must reiterate: one can’t help but think a remotely competent attorney would’ve caught this.

Mo Brooks Accidentally Gave Up His Immunity From Eric Swalwell’s Insurrection Lawsuit [Slate]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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