The Justice Department concluded late Tuesday that Rep. Mo Brooks, R-Ala., did not warrant exclusion from a Capitol riot lawsuit that claims that the congressman, former President Donald Trump, Trump's eldest son Donald Trump Jr., and personal attorney Rudy Giuliani helped instigate the deadly assault.
The Justice filing in a lawsuit brought by Rep. Eric Swalwell, D-Calif., found that Brooks failed to establish that he was acting "within the scope of his office" when he participated in a rally prior to the Capitol siege.
"The record indicates that Brooks’ 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 Justice Department concluded.
"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."
Swalwell filed the civil lawsuit against Trump, his namesake son, Giuliani and Brooks in March, arguing they were responsible for “a campaign of lies and incendiary rhetoric which led to the sacking of the United States Capitol on January 6, 2021.”
Brooks is a target because he spoke at the Trump rally near the White House earlier that day. The congressman is quoted in the lawsuit as urging the crowd that it was time to start “kicking ass” and asking whether participants were “willing to do what it takes to fight for America?”
In a separate filing Tuesday, Swalwell cast Brooks' Jan. 6 apperance as "in furtherance of a scheme to violently disrupt the electoral vote certification" of President Joe Biden.
The Justice filing comes hours after wrenching testimony from four law enforcement officers during the opening session of a House committee's examination of the Capitol riots.
The officers, who described brutal hand-to-hand combat with rioters in which they were beaten and verbally abused, specifically called on lawmakers to determine who instigated the attacks.
"It was like something from a medieval battle," said Aquilino Gonell, a Capitol Police sergeant who was drenched in corrosive chemicals and beaten with a pole, an American flag still attached. "We fought hand to hand, inch by inch, to prevent an invasion of the Capitol by a violent mob intent on subverting our democratic process."
Contributing: Bart Jansen
This article originally appeared on USA TODAY: DOJ: Rep. Mo Brooks should not be excluded from January 6 lawsuit