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Is Mo Brooks More Likely To Go To Prison Or The Senate?

Brooks wore body armor when he made his speech at the coup rally

Mo Brooks is not the kind of establishment conservative McConnell prefers as a candidate anywhere-- especially in a state like Alabama where virtually anything with an "R" next to it's name will win. Brooks is a neo-fascist more than a standard Republican. And he seems destined to be the next putrid senator from Alabama. Trump has already endorsed him. The only poll of the race I found was from a GOP polling firm that did a survey for Club for Growth, which also supports Brooks. It's over a month old but probably still as accurate now as it was then. The poll shows only 23% of the Republican primary voters know Trump endorsed Brooks. It also shows that virtually none of the likely primary voters know anything about his two top competitors, Lynda Blanchard (who once bought the Slovenian ambassadorship from Trump) and Katie Britt. His name ID is 83%; Blanchard's is 23% and Britt's is 25%. If the primary were held today:

Britt has been endorsed by retiring Senator Richard Shelby, for whom she worked as chief of staff. Trump labeled Shelby a RINO for endorsing her. Brooks, besides having been endorsed by Señor Trumpanzee, has also been endorsed by a rogues gallery of far right misfits, including Trumpanzee, Jr., Michael Flynn, Stephen Miller, Rand Paul and Rep. Barry Moore.

But Brooks got some bad news last night. The Department of Justice-- which he asked to rule against including him in the sedition lawsuit Eric Swalwell has filed against him-- ruled that he's not eligible for exclusion from the suit. The suit points out that Brooks joined Trumpanzee and Trumpanzee, Jr. plus retainer Rudy Giuliani to instigate the deadly assault on the Capitol. Although Giuliani will probably try to get himself ruled mentally unfit to stand trial, Brooks can't do that because it could hurt his electoral chances... even in Alabama.

USA Today reported 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.

Marcy Wheeler suggested that people who want to understand what comes next, start by looking at this:

What Swalwell's lawsuit say is that Brooks, the Trumps and Giuliani "by force, intimidation, or threat, agreed and conspired among themselves and with others to prevent members of Congress, including the Plaintiff, and Vice President Mike Pence from counting the Electoral College Votes and certifying President Biden and Vice President Harris as the winners of the 2020 presidential election... Mo Brooks addressed the large crowd at the January 6 rally. He said 'America is at risk unlike it has been in decades, and perhaps centuries.' He told the crowd to start 'kicking ass,' and he spoke with reverence, at a purportedly peaceful demonstration, of how 'our ancestors sacrificed their blood, sweat, their tears, their fortunes, and sometimes their lives,' before shouting at the crowd 'Are you willing to do the same?!' Brooks intended these words as a threat of violence or intimidation to block the certification vote from even occurring and/or to coerce members of Congress to disregard the results of the election."

Wheeler wrote that "In general, Brooks’ sworn declaration, submitted in support of a petition to certify that he was acting within the scope of his office as a Congressperson, claimed over and over that the actions he admits to (he claims all but one of the Tweets in question were sent by his staffers) were done, 'pursuant to my duties and job as a United States Congressman concerning presidential election dispute resolution obligations imposed on Congress by the U.S. Constitution, Amendment 12 in particular, and the United States Code, 3 U.S.C. 15 in particular.' Claiming such actions were part of his duties as a Congressperson is how Brooks responds to most of the allegations against him. One notable exception is when he claimed, "I only gave an Ellipse Speech because the White House asked me, in my capacity as a United States Congressman, to speak at the Ellipse Rally. But for the White House request, I would not have appeared at the Ellipse Rally."

[That helps explain the endorsements from the two Trumpanzees.]

"[T]he most important part, for the purposes of Brooks’ efforts to dodge this lawsuit," wrote Wheeler, "is that he has just confessed, in a sworn declaration, to have been campaigning when he delivered the speech that he wrote using official resources... [M]embers are also prohibited from using official resources for campaign purposes... [and] Brooks has sworn under oath that the specific language that seemed to invite violence was instead campaign activity outside the scope of his official duties... Brooks’ declaration, including his confession that he wrote the speech in his office, is also a sworn declaration that he violated campaign finance laws by using his office for campaign activities."

Wheeler makes it clear that DOJ recognized that "the entire rally was a campaign rally, and therefore outside the scope of Brooks’ employment as a Congressperson-- or the scope of employment of any elected official"... like Donald J Trump. DOJ:

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context-- electioneering or campaign activities-- are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.
This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).
The current House Ethics Manual confirms that the official business of Members of the House does not include seeking election or reelection for themselves or others. House resources generally cannot be used for campaign purposes, and Members’ staff may engage in campaign work only “on their own time and outside the congressional office.” House Ethics Manual, Committee on Standards of Official Conduct, 110th Cong., 2d Sess., at 121 (2008). For instance, Representatives cannot conduct campaign activities from House buildings or offices or use official letterhead or insignia, and congressional staff on official time should terminate interviews that focus on campaign issues. See id. at 127–29, 133. Of direct relevance here, a Member of Congress also cannot use official resources to engage in presidential campaigns: “[T]he general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking,” and this “prohibition applies to, for example, campaigns for the Presidency.” Id. at 124; see Lofgren Letter 2.
First, the record indicates that Brooks’s conduct was undertaken as part of a campaign-type rally, and campaign activity is not “of the kind he is employed to perform,” or “within the authorized time and space limits” for a Member of Congress. Restatement §§ 228(1)(a), (b). Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c). Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint.

Basically the DOJ ruling "is an effort," wrote Wheeler, "to preserve the principle that not just Congresspeople, but all Federal employees, may be charged and convicted of a conspiracy to obstruct the vote count, particularly for actions taken as part of campaign activities." And, clearly, "all" could apply to Trump and to other members of Congress who participated in the Publix Super Markets heiress Julie Jenkins Fancelli- funded rally on the Ellipse, like Madison Cawthorn.

The NY Times reported a few days after the riot that "a handful of Trump’s most loyal allies in the House had gone even further in the days and weeks before the riot, urging their supporters to come to Washington on Jan. 6 to make a defiant last stand to keep him in power. They linked arms with the organizers of the protest and used inflammatory, bellicose language to describe the stakes. Representatives Marjorie Traitor Greene of Georgia and Lauren Boebert of Colorado, first-term lawmakers who ran as outspoken defenders of Trump, referred to the day as Republicans’ '1776 moment.' Representative Paul Gosar of Arizona, who for weeks promoted the Jan. 6 protest and other 'Stop the Steal' events across the country more than a dozen times, repeatedly referred to Biden as an 'illegitimate usurper' and suggested that Mr. Trump was the victim of an attempted 'coup.' 'Be ready to defend the Constitution and the White House, Mr. Gosar wrote in an op-ed titled Are We Witnessing a Coup d’État?"

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