Attorney General Merrick Garland has faced blowback for his “institutionalist approach” to managing the Department of Justice, which critics say doesn’t go far enough in undoing the damage wrought by his predecessor William Barr. This includes the Department’s decision to argue on appeal in the defamation case brought against Donald Trump by E. Jean Carroll that then-President Trump’s “allegedly defamatory statements” were made within the scope of his employment as an elected official even though they were “prompted by press inquiries about the official’s private life.” Consequently, the Department continues to argue in that case that the United States, and not Trump personally, is the proper defendant—an argument rejected by the trial court. Steve Vladeck and I analyzed the issues in that case in a prior article. We concluded that, although a judge can reject a “scope of employment” certification by the Department of Justice, thereby allowing claims to proceed against an official in their private capacity, existing law remains “woefully inadequate when it comes to holding individual federal officers and the federal government liable for many (if not most) torts, including constitutional torts.”

Representative Eric Swalwell’s (D-CA) lawsuit against former President Trump, Donald Trump Jr., Representative Mo Brooks (R-AL), and Rudy Giuliani could likewise reveal the inadequacy of the existing legal framework. Because Donald Trump and his associates treated the Presidency like a personal fiefdom, his administration further confounded the doctrinal line between personal and official acts. In an attempt to restore the independence of the Department of Justice, Attorney General Garland has asserted positions that some find untenable, but that others recognize might be the price of avoiding a situation where, in Washington Post columnist Eugene Robinson’s words, “culpability and liability depend on who happens to be president.”

The problem is that the dominant voices in one of the country’s two major parties have rejected core democratic norms, as Susan Hennessey and Ben Wittes have painstakingly documented in relation to the Trump Presidency. That brings us to the Swalwell suit.

The first sentence in Swalwell’s complaint reaffirms that “the peaceful transfer of power is a sacrament of American democracy.” The complaint alleges that Trump incited violence on January 6 in his personal capacity as a candidate, tweeting from his personal rather than official Twitter account and speaking at a rally “in his capacity as a losing candidate for the Presidency.” It also alleges that Rep. Mo Brooks acted in his personal rather than official capacity when he asserted “without evidence, that the election had been rigged” and by directly inciting violence at the January 6 rally.

On July 2, Brooks rejected this characterization and petitioned the court “to certify that Brooks was acting within the scope of his office or employment as a Member of Congress (and, hence, employee of the United States of America)” and to substitute the United States as the proper defendant in the suit. The court has ordered Swalwell to respond by July 27, and the Department of Justice must decide by that same date whether to issue the requested certification. It will then be up to the court whether to accept the certification as to all or some of the alleged acts.

Not a Typical Westfall Certification Request

Several features distinguish the allegations in the Swalwell complaint from those in the Carroll lawsuit, which was a closer call under current caselaw. In particular, the context of the January 6 rally is arguably quite different from a press interview in the Oval Office or a speech on the floor of Congress (or a press interview in a member of Congress’ office, per a federal court opinion on the topic). With respect to Trump, it might also be noteworthy that private attorneys, not White House Counsel, represented him in his second impeachment trial on January 13 for incitement of insurrection. If the Department of Justice seeks to substitute the United States as the defendant instead of Rep. Brooks or former President Trump, it will essentially be saying that public officials should not be personally civilly liable for alleged incitement, including pressuring and threatening other public officials to undermine the results of democratic elections, and conspiring to injure members of Congress, because such activity falls within their “scope of employment.” Put differently, the Department must assess whether the defendants were furthering legitimate official goals or instead pursuing harmful personal agendas—that is, whether they were acting on behalf of the United States.

The task of determining what conduct legitimately falls within the “scope of employment” of a federal employee—and who has the final say—becomes increasingly fraught when such conduct violates basic democratic norms. On one hand, it seems dangerous to put the Department of Justice in the position of parsing particular acts and statements given the chilling effect that such lawsuits could have on political dissent. On the other hand, even though a Westfall Act certification does not condone the alleged behavior (as the Department of Justice’s filing in the Carroll appeal makes clear), it does confer a veneer of legitimacy by extending a protective shield to the defendant official.

The purpose behind Westfall Act substitution is to ensure that government officials aren’t hamstrung by litigation to the point that it limits their capacity to fulfill the government’s mandate. That purpose is not served by extending the shield of protection to actions allegedly taken to incite an insurrection against the democratically elected government itself, when there are multiple lawful means to ensure the accuracy of results. Denying certification does not guarantee liability: The plaintiff must still prove the allegations and entitlement to relief under applicable law. However, the idea that transgressions by elected officials should be cured solely at the ballot box seems naïve in an era when the franchise itself has come under sustained attack. It might well be that, in order to return to “business as usual,” the Department of Justice will have to decide that inciting a mob to storm the Capitol is not an official governmental function. Criminally prosecuting those particular individuals who violently stormed the Capitol is a necessary, but likely insufficient, response to the persistent assault on the values that all three branches of the federal government are charged with protecting.