Garland’s decision arose under a statute requiring the attorney general to certify whether a government employee sued for causing harm was acting within the scope of his employment. The statute provides that such cases should proceed directly against the United States, with the defendant relieved of responsibility to those harmed. Here, the suit was brought by Rep. Eric Swalwell (D-Calif.) against Brooks and others for actions taken on Jan. 6 that allegedly led to the invasion of the Capitol and interfered with Swalwell and others in certifying the 2020 presidential election outcome.
Brooks claimed that his inflammatory comments made to the assembled crowd — such as, “Today is the day American patriots start taking down names and kicking ass” — were made within the scope of his employment as a member of Congress. He requested certification to immunize himself from accountability. In run-of-the-mill negligence cases where the need for certification commonly arises, the decision typically turns on a highly factual and sometimes ambiguous judgment about whether the employee causing harm did so while doing the job they were hired to do.
Approached in this way, Brooks’s claim looks weak, in view of provisions that place political campaigning and advocacy outside Congress beyond the limits of the job itself. That point was also made in a detailed letter that the head of the House Committee on Administration filed in the case giving the back of the hand to Brooks’s outlandish position.
But the more important problem with Brooks’s request is that alleged attempts to undermine our system of government — in this case, by subverting the outcome of a free and fair election — cannot be squared with the duties of anyone who has sworn to uphold and defend the Constitution of the United States.
A contrary determination on the certification question here would have meant that Brooks walked scot-free. Swalwell would have been left to pursue a fruitless action against Brooks’s substitute defendant, the United States — itself also the victim of the harms alleged.
The broader consequences would be even more devastating. If Brooks was doing his job at the rally, how can the same not be true of Trump? That goes not just at the rally on Jan. 6, also the subject of civil litigation against the ex-president, but also for the efforts to hold Trump criminally accountable in all his nefarious efforts to hang onto office, such as Georgia’s investigation of his advocacy to the Georgia secretary of state to “find 11,780 votes” — just enough to change the outcome there.
There are good reasons to believe that these concerns about ultimate accountability and the integrity of our system of elections and laws played a central role in Garland’s thinking in rejecting Brooks’s request. One is the facially contrary decision that the Justice Department recently reached on Trump’s own request for certification in a suit against him alleging that he defamed E. Jean Carroll in responding to her allegations of rape. In that case, Barr had already made the certification, a trial judge had rejected Barr’s decision and the government had filed an appeal.
Many (including us) questioned Garland’s decision to press forward with the appeal, rather than reverse the department’s established position in the case. But it’s possible that a decision to reverse an established position in a way bearing on Trump’s personal interests might look political to some — perhaps seeming to echo Barr’s interventions to alter Justice Department positions in the prosecutions of Trump allies Michael Flynn and Roger Stone. Whatever one may think of it, Garland’s adherence to the certification decision already made in the Carroll case was possible without any assertion that the scope of a federal employee’s job can include conduct aimed at fundamentally undermining our system of government. That would not be true in the Brooks case.
That Garland is concerned with securing accountability for the worst misdeeds that threatened our system during the last four years is borne out by an array of other initiatives. Most obviously, there are the prosecutions of hundreds of rioters who attacked the Capitol, with the first defendant sentenced to a felony just last week.
Last week’s headlines were also dominated by the prosecution of Trump’s allegedly corrupt crony and inaugural committee chair, Thomas Barrack, for allegedly not registering to lobby the government on behalf of the United Arab Emirates and other offenses. We learned that this decision was sidestepped during the Trump administration, but the Garland Justice Department took it on.
Garland’s department also oversaw the search warrant secured this spring against Rudolph W. Giuliani, Trump’s attorney in many of his attempts to overthrow the election. The agents were apparently looking for evidence about Giuliani’s activities related to Ukraine. Getting such a warrant for a lawyer requires top-level departmental approval. This is another accountability matter that had been stalled by the previous Justice Department. But Garland took it on.
Garland has announced substantial initiatives aimed at securing voting rights, pursuing domestic terrorism and defending against cyberthreats. While these major efforts do not strictly concern accountability for past actions, they each have a distinctly political component: The apparent illicit activities targeted include ones that were undertaken by or for Republican political interests.
Another important data point also came Tuesday when the Justice Department announced that Trump officials would be allowed to testify before Congress regarding the insurrection. This is a vivid contrast to the Trump-Barr department, which broadly obstructed testimony from Trump administration officials (including Barr himself).
Garland’s ability to pursue all of these matters without undue carping that he is playing politics depends on his scrupulous efforts to play it straight. There is a value to him bending over backward to demonstrate adherence to long-standing norms of evenhandedness, continuity and respect for the judgments of the department’s professional staff. All of that gives him the credibility to be able to make these harder and extremely consequential calls.
That reserve of credibility will also be needed for the larger questions that loom as to Trump. To Garland’s credit, this has been a remarkably leak-free Justice Department, so we don’t know what issues the government is looking at as to the former president. But just from the public record, the possibilities are many, including those dealing with the insurrection itself. The attorney general’s decisions in the cases of Giuliani, Barrack and now Brooks suggest that he has his eye on the ball of public accountability for the worst wrongs that Trump and his ilk have perpetrated.
Precisely because he has been careful to avoid any plausible claim of playing politics, Garland is in position to pursue accountability for the worst depredations against our system of government. His conduct to date, including the Brooks decision, is evidence that he is working to do so.