However, two decisions this week should hearten pro-democracy advocates justifiably concerned that Garland’s desire to return to normal and protect continuity at the department would take precedence over the relentless pursuit of truth and accountability for illegal efforts to undermine our election.
On Tuesday, the Justice Department put to rest fears that it would take the position that Rep. Mo Brooks (R-Ala.) was acting within the scope of his federal employment in riling up the crowd at the “stop the steal” rally ahead of the insurrection on Jan. 6. That means he must defend himself against suits stemming from his participation in the effort to overturn the election. In particular, the suit brought directly against Brooks by Rep. Eric Swalwell (D-Calif.) can proceed.
In telling language, the Justice Department informed the court, “Inciting or conspiring to foment a violent attack on the Capitol is not within the scope of employment of a Representative — or any federal employee” and therefore not action for which the Justice Department should step in to defend the federal employee. “Any federal employee” is a phrase that should send shivers down Trump’s spine. It sure sounds as though he will be on his own in defending suits brought against him for inciting the violent insurrection.
The pro-rule-of-law group Protect Democracy issued a statement praising the decision that affirmed “No American — whether they are an ordinary citizen or a failed presidential candidate — is above the law.” The statement read, in part:
Brooks’ actions, which facilitated an insurrection against the United States and the sacking of the Capitol, were not remotely part of his official duties as a Member of Congress. His actions took place at a privately-funded rally at the White House ellipse prior to the official Congressional proceeding to count the 2020 electoral votes. At the event, Brooks helped failed presidential candidate Donald Trump incite the crowd to violence by, among other things, exhorting them that it was time to start “kicking ass,” which resulted in a mob storming Congress in order to disturb Congress’s counting of the certified electoral votes from each of the states. As the Justice Department correctly concluded, the United States is not required to defend government employees who are sued for facilitating insurrection against the United States.In addition to increasing the likelihood that the District Court will ultimately deny Brooks’ petition, the decision is also a bad sign for Donald Trump should he choose to make a similar request in January 6th litigation. ...“Facilitating an insurrection against our own government isn’t an elected official’s job; it’s an unconscionable violation of his oath to protect and defend the constitution,” said Anne Tindall, counsel for Protect Democracy.
In another key determination this week, the Justice Department informed former acting attorney general Jeffrey Rosen that current and former administration witnesses to efforts to overturn the election would not be allowed to avoid testifying before Congress by asserting executive privilege. Given the compelling need for Congress to investigate the insurrection, Rosen could therefore provide “unrestricted testimony” within the scope of his planned interview with lawmakers about attempts to overthrow the 2020 presidential election. In other words, he — and likely other relevant witnesses — can be subpoenaed and will have to answer questions under oath.
Andy Wright at Just Security observes, “Witnesses called by congressional committees now have lost a legal impediment and political argument to resist testimony. Witnesses who are inclined to testify may use the department’s letter as a permission structure to testify.”
Those seeking to avoid testimony can still go to court to challenge the Justice Department’s denial of executive privilege, but they are far less likely to prevail given the Justice Department’s solidly reasoned decision.
Do these decisions signify a reversal of Garland’s troubling trend of not holding the previous administration accountable, starting with Garland’s decision to not disclose the full Mueller report? Perhaps. The attorney general remains vulnerable to criticism that he favors institutional continuity over the quest for truth and accountability. He may simply take a more forward-leaning stance when it comes to Jan. 6 than he does regarding to his department’s previous missteps or Trump’s other conduct. As detailed in the letter to Rosen, the events leading up to the insurrection were truly extraordinary, and government officials have no plausible claim that they were simply doing their jobs.
Garland will need to follow the facts and investigate (as the House select committee is doing) the funding, organization and incitement of the violent insurrection. That may well ensnare former Trump officials, Republican members of Congress and the former president.
The two decisions from this week seems to suggest the Justice Department believes these individuals are not immune from suit and must fund their own defense. That might just be enough to compel some witnesses to cooperate and provide valuable testimony about senior administration officials or Trump.
Garland’s decisions also open up the possibility that other actions seeking to overturn the election — such as Trump’s phone call to pressure Georgia election officials or his strong-arming of Michigan lawmakers — similarly fell outside the scope of his role as president. These efforts, too, must be investigated and indictments issued when appropriate.
The Justice Department has not delivered its last word on Trump’s potential culpability. But it has confirmed that it will run no interference on behalf of insurrectionists and those who egged them on. Now we will find out whether Garland actually intends to pursue those who encouraged and abetted the violent attack.