Someone may need to tell Rep. Mo Brooks to stop talking.
The Republican congressman from Alabama keeps defending himself in court against accusations that he helped incite the Jan. 6, 2021 riot—and it’s not helping the former prosecutor in the slightest.
The particular defense Brooks has chosen seems aimed at having Justice Department lawyers mount a legal defense for him. He is arguing that his incendiary speech on Jan. 6 was part of his official duties as a congressman, a crusade he continued in federal court on Monday.
If that is the case, Brooks may have opened himself up to potential removal from office. And if it’s not the case—as prosecutors are trying to prove—then Brooks has handed prosecutors all the ammunition they’d need to charge him with misusing congressional resources.
In his shaky attempt to prove that his Jan. 6 speech was part of his official duties, Brooks has introduced evidence that his staff spent taxpayer time preparing and helping him with his Jan. 6 speech. So now, if Brooks falls back and admits his speech was a form of campaigning—as prosecutors are arguing—then he may have a whole new set of legal problems.
Brooks has created a classic ‘damned if you do, damned if you don’t’ legal conundrum.
Ciara Torres-Spelliscy, a visiting professor at American University Washington College of Law, told The Daily Beast that part of the problem was Brooks’ decision to be his own lawyer. “There’s an old phrase that ‘a lawyer who represents himself has a fool for a client.’ That seems apt,” Torres-Spelliscy said.
Brooks, a Trump loyalist who perpetuated unfounded voter fraud claims, spoke to protesters near the White House on Jan. 6. And during his 10-minute speech—while wearing a bulletproof vest—Brooks said Jan. 6 was a day for “kicking ass,” repeatedly mentioning how the ancestors of the protesters had “sacrificed their blood… and sometimes their lives.”
“Are you willing to do the same? Are you willing to do the same to fight for America?” Brooks said. “Louder! Will you fight for America?”
The crowd later surrounded the Capitol, savagely beat police officers, smashed their way into the building, tore through offices, stole furniture and electronics, searched for politicians with kidnapping tools, threatened to kill them, and erected gallows outside.
After the attack, Rep. Eric Swalwell (D-CA) sued Brooks and other speakers at the political rally, including former President Donald Trump, his son Donald Trump Jr., and hero mayor-turned-election conspiracy theorist Rudy Giuliani.
In federal court on Monday, U.S. District Judge Amit P. Mehta listened to Brooks argue his defense—one designed specifically to give him immunity by shielding him behind the government and forcing the Justice Department to fight the legal battle for him.
“Every act I took, every speech I gave… was within the scope of my employment. They are all a part of my job duty,” he told the judge, referring to his responsibilities as a member of Congress.
Brooks asserted that would include the part when he yelled to protesters, “Today is a time of choosing, and tomorrow is a time for fighting!”
William Bullock Pittard, a private attorney representing Swalwell, pointed out that Brooks wants the government he harmed to now represent him. Meanwhile, a DOJ prosecutor argued that Brooks was actually delivering a campaign speech at a Trump campaign rally.
Hilariously, the evidence was clear because it came from Brooks’ own court filings, in which he tried to explain away incendiary language by claiming that “choosing” in his speech meant “which senators and congressmen to support, and oppose, in future elections.” His speech’s “tomorrow… fighting” referred to “future elections.”
As for the part in his speech where he said, “Today is the day American patriots start taking down names and kicking ass!” the congressman’s own court filings described it as purely electioneering.
“My kicking ass comment referred to what patriotic Republicans needed to do in 2022 and 2024 elections,” he wrote back in July.
The DOJ prosecutor, Brian M. Boynton, used those assertions to ask that Judge Mehta block Brooks from gifting himself a government defense and immunity.
“It’s a bedrock principle in our democracy that the government must remain strictly neutral when it comes to elections,” Boynton said on Monday.
“I think it’s very clear on the capacity with which he was acting,” Pittard said, citing the documents as well.
By reaching for government protection, the congressman may have exposed himself to even more legal trouble—maybe even expulsion from Congress, said Jessica A. Levinson, a law school professor at Loyola Marymount University.
“Members of Congress are allowed to have very broad latitude when they use this protection. Having said that, what happened was an insurrection… and if we consider that to be the business of Congress, then we’ve really strained that definition to its breaking point,” she told The Daily Beast.
“It’s fair to say, ‘OK well, if this is how you conduct yourself officially, then you should no longer be a member of Congress. Helping someone incite an insurrection is an impeachable offense,’” she said.
Judge Mehta has not yet ruled on whether Brooks can have the Justice Department come to his rescue. But during the five-hour hearing, the judge showed little patience for the clumsy attempts by attorneys for ex-President Trump and Giuliani to whitewash or minimize the insurrection. Mehta has already presided over several criminal cases involving rioters.
If Brooks fails to convince the judge he was acting officially as a congressman and falls back on the concept that he was campaigning, he could face charges for misusing congressional resources. That’s because, once again, Brooks himself laid out in court documents how he directed his office to be involved in every aspect of the speech, starting with the plans made with the White House.
“I then delegated to my congressional staff the task to work out the details” of the speech, then typed it up “in my office at the Rayburn House office building on my congressional office computer,” he previously wrote. “I also timed, reviewed, revised, and practiced my Ellipse speech in my office.”
During his presentation before the judge on Monday, Brooks claimed there was nothing in the House rules of ethics that he violated in his speech. To make his argument, Brooks pointed to the failed Ethics Committee complaint against him by Rep. Pramila Jayapal (D-WA) last March. Although, it was clear to all those in the virtual hearing that the process merely failed on party lines.
Brooks’ congressional office did not respond to The Daily Beast’s questions about the congressman’s solo legal strategy. While he did graduate from University of Alabama’s law school in 1978, he entered politics as a state-level representative just four years later—and the state bar association currently lists him as “not authorized to practice law in Alabama.”
Legal scholars have noted that Brooks has placed himself out in the cold, alone. The House of Representatives would normally have a strong self-interest in preserving immunity for its members, regardless of party. The fact that the legislative institution refuses to come to his aid shows how egregious his conduct was, legal scholars told The Daily Beast.
“We’re in pretty uncharted legal waters here so I don’t have a prediction of what a court will do with a congressman v. congressman suit where there was life at peril at the Capitol because of an unprecedented insurrection,” Torres-Spelliscy said.