WASHINGTON – Rep. Mo Brooks, R-Ala., has asked to be dismissed from a federal lawsuit alleging that he incited the Jan. 6 mob assault on the U.S. Capitol, claiming that he can’t be held liable because was acting as a federal employee while challenging the 2020 election results in a fiery speech just before the riots began.

Brooks said in a motion Friday that he should be dropped as a defendant or represented by the Justice Department in the case, filed March 5 by colleague Rep. Eric Swalwell, D-Calif. The lawsuit names former president Donald Trump, Brooks, Donald Trump Jr. and Rudy Giuliani and seeks damages in connection with their statements to a crowd near the White House that the former president told to march to the Capitol.

“Today is the day American patriots start taking down names,” Brooks said, echoing Trump’s unfounded claims that the election was rigged. Brooks told the crowd they were victims of a historic theft and asked whether they were ready to sacrifice their lives for their country.

Rioters loyal to then-President Donald Trump climb the West Wall of the the U.S. Capitol in Washington. Even as the first of the more than 500 federal Capitol riot defendants have begun to plead guilty, scores of suspects remain unidentified, reflecting the massive scale of the Justice Department’s investigation and the grueling work authorities still face to track everyone down. (AP Photo/Jose Luis Magana) WX206 WX206
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U.S. District Judge Amit Mehta in Washington on Monday directed the Justice Department and Swalwell to respond to Brooks’s claims. The judge also dismissed without prejudice Swalwell’s request that the court enter a default judgment against Brooks, who had previously failed to meet a deadline to respond to the suit.

In his filing Friday, Brooks invoked a 1988 law that protects federal employees from personal liability while acting within the scope of their office or employment. He argued that his speech, tweets and related conduct “were indisputably made in the context of and preparation for” a joint session of Congress on Jan. 6 to confirm the results of the presidential election.

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Trump has asked the judge to dismiss the case on similar grounds, claiming that as president he has absolute immunity from lawsuits over his official actions, and was free to urge Congress to take actions favorable to him in its electoral count.

“Brooks represented the interests of his constituency when Brooks challenged the Electoral College vote submittals of states whose election processes were less than reliable in the judgment of Brooks,” Brooks said in the filing. “It makes no difference whether Brooks was right or wrong.”

Mehta gave Swalwell’s office and the Justice Department until July 27 to respond.

Swalwell, a House manager in Trump’s impeachment and the intelligence subcommittee chairman, filed suit claiming that Trump and fellow speakers should be held liable for injuries and destruction caused in the riot.

Swalwell accused the speakers of mobilizing a crowd of tens of thousands of Trump supporters and priming them for violence at the Capitol.

Authorities have charged more than 500 defendants in the riots, which authorities said resulted in five deaths, led to assaults on nearly 140 police officers, caused $1.5 million in damage and forced the evacuation of Congress. At least 800 people broke into the Capitol, and Swalwell’s suit alleges that Trump’s ongoing claims of election fraud “made clear he poses a risk of inciting future political violence.”

The lawsuit claims the defendants violated the Reconstruction-era Ku Klux Klan Act by conspiring to violently interfere in Congress’s constitutional duties and failing to act to stop the mob. It also accuses them of multiple counts of negligence under both federal and District of Columbia law, aiding and abetting, and infliction of emotional distress.

In March, then-Trump spokesman Jason Miller called Swalwell “a lowlife with no credibility,” adding, “after failing miserably with two impeachment hoaxes,” Swalwell is engaging on a witch hunt on behalf of the Chinese.