Snake eyes! Yesterday Mo Brooks, the Alabama congressman and senatorial hopeful, struck out twice in his bid to get someone — anyone! — to take over for him in the tort suit filed by his fellow representative Eric Swalwell for Brooks's alleged incitement of the insurrection.

"Today is the day American patriots start taking down names and kicking ass!" Brooks demanded of the screeching mob on January 6. "Now, our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives, to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you: Are you willing to do the same? My answer is yes. Louder! Are you willing to do what it takes to fight for America? Louder!! Will you fight for America?!"

We all know what happened next.


Swalwell alleges that Brooks, along with Rudy Giuliani, Donald Trump, and Donald Trump Jr., committed various torts against him, including conspiring to violate his civil rights.

Brooks spent weeks dodging the process server, because he is a very serious grown adult and former member of the Alabama bar. After finally getting served, Brooks claimed in a filing earlier this month that he was acting within the scope of his official duties when he dispatched a crowd of lunatics to storm the Capitol. Citing the Westfall Act, which requires the government to substitute itself as defendant when a government employee faces a tort claim on the job, Brooks then demanded that the DOJ swoop in and save him from his scary colleague. Or, barring that, he'd like the House itself to take over his legal defense.

Brooks's arguments ranged from the plausible — he was commenting on a matter of public interest — to the idiotic — he drafted and practiced his Ellipse speech in the Rayburn Office building. But the gravamen of his argument appears to be that his constituents just really, really like Donald Trump, so anything he does to support the great man is definitionally constituent services. It's a bold strategy, Cotton!

Here is an actual line from his motion:

Brooks sought to encourage the Ellipse Rally attendees to put the 2020 elections behind them (and, in particular, the preceding day's two Georgia GOP Senate losses, and to inspire listeners to start focusing on the 2022 and 2024 elections, which had already begun.

Brooks sought to inspire Ellipse Rally attendees to exercise their First Amendment rights by chanting the words "USA."

UH HUH.

Shockingly, the government failed to be persuaded by this logic.

"The record indicates that Brooks's appearance at the January 6 rally was campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections," the government wrote in its reply last night. "Members of Congress are subject to a host of restrictions that carefully distinguish between their official functions, on the one hand, and campaign functions, on the other. The conduct at issue here thus is not the kind a Member of Congress holds office to perform, or substantially within the authorized time and space limits, as required by governing law."

The DOJ agreed with Rep. Zoe Lofgren, chair of the Committee on House Administration, who wrote that Brooks's reference to 2022 and 2024 was an explicit admission "that his conduct was instead in furtherance of political campaigns," rather than part of his official duties. And so both the Justice Department and House General Counsel informed the court last night that they would not be jumping in to save Brooks's sagging bacon.

"Given that the underlying litigation was initiated by a current Member of the U.S. House of Representatives individually suing another current House Member individually and does not challenge any institutional action of the House or any of its component entities, the Office has determined that, in these circumstances, it is not appropriate for it to participate in the litigation," House Counsel Doug Letter wrote.

So Brooks is on his own in this one. Well, unless Donald Trump decides to do his old pal a solid and pick up the tab for this round.

LOLOLOL.

[Swalwell v. Trump, et al., Docket via Court Listener]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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