Attorney General Merrick Garland confronts a choice that is more than just career-defining. He must answer a question arising out of one of the lawsuits surrounding the Jan. 6 insurrection that is pivotal for the rule of law in the United States. That question is whether officials of the US government, bound by oath “to support [the] Constitution,” and, in the case of the president, to “take Care that the Laws be faithfully executed,” can be said to be acting within the bounds of their elective offices even when they foment violent insurrection against the laws that ensure the peaceful transition of power. If the attorney general decides to treat such action as merely one way of discharging official duties, then self-government will become a mirage, and those who are guilty of trashing it will have been placed beyond the reach of legal accountability to those they injure. That would mean that popular sovereignty is dead and the twin principles that no one is above the law and that every legal wrong deserves a remedy might as well be tossed into history’s dust heap.
The Biden administration and Garland have repeatedly voiced dedication to those principles and to democracy’s survival. That’s why many of us were dismayed when Garland approved the filing of a brief supporting former president Donald Trump’s implausible claim that he was merely performing an “official duty” to preserve his personal reputation and credibility as president when he assaulted the integrity and truthfulness of E. Jean Carroll, who had accused him of rape before he became president. Supporting that bold claim meant that Carroll’s suit was in reality a suit against the United States. It was therefore a suit that called on the Justice Department to intervene on Trump’s behalf under a law enacted by Congress in 1988 called the Westfall Act. And, worse yet, the suit would have to be dismissed because the United States hadn’t waived sovereign immunity.
It was unsurprising to see then-Attorney General William Barr take that position. But why did Garland feel obliged to stick with it even after the Jan. 6 insurrection on the US Capitol should have made absolutely clear the danger of its implications? To be sure, demonstrating the department’s independence from politics is important. But once the department has strained the president’s job description to include defaming a private citizen to protect that president’s image, it’s a perilously short step to the shocking position that a president’s job extends to fomenting a coup to hold onto power after losing an election.
But Garland does not have to take that fateful step.
Garland should draw a bright line between a case like Carroll’s — where he has already stretched the Westfall Act too far — and cases in which the president and other public officials are sued by those injured in the insurrection. On no plausible reading of the Westfall Act, or any other law, can the president and his cohort be said to have been “just doing their jobs” when they rallied an angry mob to the Capitol to overturn the election.
On July 5, the D.C. Federal District Court, in which the three major insurrection-related lawsuits are pending, ordered the United States, the House of Representatives, and Democratic Representative Eric Swalwell of California, the plaintiff in one of those lawsuits, to respond by July 27 to a petition by Republican Representative Mo Brooks of Alabama copying Trump’s invocation of the Westfall Act in Carroll’s case. Brooks has asked the Justice Department to certify that he was acting within the scope of his congressional office in joining Trump, former New York City mayor (and former lawyer) Rudy Giuliani, and others in addressing the angry, agitated, and partly armed mob assembled in front of the White House on Jan. 6.
I hope the rumors that the department will issue the requested Westfall Act certification are groundless. For the department to do so would be a profound legal misstep. Even if Trump’s defense of his personal reputation by lying about the alleged rape and besmirching the character of his accuser are deemed part of his job description — a stretch in itself — it boggles the imagination to suggest that Brooks was performing his job as a member of Congress by helping the president thwart Congress’s discharge of its constitutional responsibility to certify the results of the presidential election in which the incumbent had lost. The Carroll stretch transforms a private transgression into a public duty. The Brooks stretch transforms an attack on Congress into a congressional obligation. No amount of emphasis on the fact that Brooks was using his congressional staff to help him draft his incendiary remarks and otherwise wrap himself in the garb of his official post can make that dog hunt.
Even on Brooks’s own rather fanciful description of what he was doing at Trump’s request, he isn’t entitled to use the shield of the Westfall Act. The petition he filed on July 2 claims that, when he spoke of the proceedings underway in the Capitol as a theft of the presidency and urged the mob to “kick ass,” he was merely telling it to fight hard to take back Congress in 2022 and the White House in 2024. That’s ridiculous. But even if it were true, his own words would render the Westfall Act inapplicable. Judicial precedents make clear that political campaigning falls entirely outside the immunity the act provides to federal officials.
In any event, the law is clear that the District Court — and the Appeals Court for the D.C. Circuit and Supreme Court, if this matter reaches them — are bound at this stage of the lawsuits against Trump, Brooks, and Giuliani to treat the detailed allegations of the complaints as true. And, in these cases, this means treating as true the claim that the defendants were attempting to undo the results of a free and fair presidential election.
If Garland comes even close to suggesting that the elected head of the executive branch and those members of Congress so beholden to him that they will join him in his crusade to “stop the steal,” as the president put it, are to be shielded by the Justice Department from liability — whether civil or criminal — for seeking to prevent Congress from peacefully certifying an election replacing that chief executive with a successor, our system of government will be in mortal peril. And it would be folly for Garland to pretend that saying Brooks was acting within his authority still leaves open the possibility of denying that Donald Trump was acting within his when that question is teed up for decision, as it shortly will be in all three cases. Brooks’s basic defense, after all, is that he — like the mob he was addressing — was just doing Trump’s bidding. If suing Brooks amounts to suing the federal government, then suing Trump does too. But to embrace that proposition is to embrace the quintessential dictatorial premise that the chief executive is the state. And to do that is to bring the American experiment in self-government to a tragic end.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard and was the US Justice Department’s first head of the Office of Access to Justice. Follow him on Twitter @tribelaw.