On Tuesday, the Justice Department and the House of Representatives will file briefs explaining to a federal court whether each believes that Rep. Mo Brooks (R-Ala.) was acting within the scope of his employment when he allegedly incited the violent attack on the Capitol and sought to subvert the peaceful transfer of power on Jan. 6. This sounds absurd, but in effect Brooks is asking the Justice Department to certify that he was acting in the scope of his duties when he tried to overthrow the government. If he succeeds, he would be immune from suit, and the Justice Department would step in on behalf of the government in civil suits arising from the violent insurrection.

It would be a gross error and invitation for future insurrections if either the House or Justice Department agreed that Brooks is protected. How can encouraging a mob to disrupt the electoral college tabulation possibly be within Brooks’s duties? That would be akin to saying Gen. Robert E. Lee was acting within the scope of his duties in the U.S. Army when he attacked Union troops. Sedition is not within the scope of any official’s duties.

Constitutional scholar Laurence H. Tribe wrote last week, “If the attorney general decides to treat such action as merely one way of discharging official duties, then self-government will become a mirage, and those who are guilty of trashing it will have been placed beyond the reach of legal accountability to those they injure.” He argued, “That would mean that popular sovereignty is dead and the twin principles that no one is above the law and that every legal wrong deserves a remedy might as well be tossed into history’s dust heap.”

Tribe concluded:

If [Attorney General Merrick] Garland comes even close to suggesting that the elected head of the executive branch and those members of Congress so beholden to him that they will join him in his crusade to “stop the steal,” as the president put it, are to be shielded by the Justice Department from liability — whether civil or criminal — for seeking to prevent Congress from peacefully certifying an election replacing that chief executive with a successor, our system of government will be in mortal peril. And it would be folly for Garland to pretend that saying Brooks was acting within his authority still leaves open the possibility of denying that Donald Trump was acting within his when that question is teed up for decision, as it shortly will be in all three cases. Brooks’s basic defense, after all, is that he — like the mob he was addressing — was just doing Trump’s bidding. If suing Brooks amounts to suing the federal government, then suing Trump does too. But to embrace that proposition is to embrace the quintessential dictatorial premise that the chief executive is the state. And to do that is to bring the American experiment in self-government to a tragic end.

Rather than ignoring ample evidence of incitement, both the House and Garland should emphatically deny that either Brooks or Trump were acting in the scope of their duties. Brooks should be held responsible for any actionable conduct leading up to the Jan. 6 attack.

This issue comes to a head at a time when legal scholars and democracy advocates’ patience with Garland’s unwillingness to hold Trump and his cronies responsible for wrongdoing is wearing thin. Attorneys general are not invested with authority to satisfy political resentments or to return us to some perceived sense of “normal.” If Attorney General William P. Barr was wrong to base prosecutorial decisions on political considerations (protecting his boss), then it would be equally wrong for Garland to decide that for political reasons he should also protect the Trump team and avoid meritorious investigations and indictments.

We are not talking only about Trump’s actions on Jan. 6 or about possible misconduct (e.g., obstruction of justice, misleading courts) in the Justice Department that Garland seems determined to sweep under the rug. Trump’s attempts to strong-arm Michigan and Georgia election officials after he lost the 2020 election were not only a violation of his oath but also may have violated state and federal law prohibiting election fraud and manipulation.

In the case of Georgia, we have Trump on tape telling the secretary of state to “find” enough votes for him to win. What stronger indication of a serious election crime could possibly exist? So far the Justice Department seems to have left any investigation to the Fulton County prosecutor, who unsurprisingly has more pressing priorities. There is no legitimate reason for the feds’ refusal to investigate and, if warranted, prosecute Trump for conduct that no other president in history ever contemplated. If any other American’s participation in this set of facts would prompt a serious federal investigation, Garland must not exempt the former president. That is the meaning of “no one is above the law.”

Garland may think he is attempting to avoid politics by refusing prosecution of controversial cases stemming from the Trump years. If so, he has it backward. If the current president wants to pardon individuals from the previous administration for political reasons, that is his prerogative — not Garland’s. Especially when it comes to any post-election conduct abetting sedition and attempting to corrupt the ballot tabulation, we need an attorney general to aggressively pursue facts and bring actions against Trump and his supporters where warranted. If not, Garland would have inadvertently affirmed Trump’s argument that he was above the law.