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This question stems from an answer to another question here. In it, a DOJ official is quoted as saying:

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.

This seems to have been taken from a legal argument made by the US DOJ in advising the court to deny substitution of parties for Rep. Mo Brooks, but I haven't found it the original document.

How would I find the DOJ's legal argument in context?

Can anyone clarify further about the "restrictions" this quote refers to?

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  • It's not about "representation" but about substituting the US as defendant as per the Westfall Act. scholarship.law.nd.edu/cgi/…
    – Fizz
    Oct 4 '21 at 14:53
  • OK corrected Professor @Fizz
    – T Battel
    Oct 4 '21 at 16:43
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That quote actually seems to be lifted from p.2 the 29-page response opposing the petition to substitute the US as defendant, namely

THE UNITED STATES’ RESPONSE TO DEFENDANT MO BROOKS’S PETITION TO CERTIFY HE WAS ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT

Case 1:21-cv-00586-APM Document 33 Filed 07/27/21

The full para where that appears (and the next two ones):

The record indicates that Brooks’s 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. 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. See Restatement (Second) of Agency § 228(1)(a), (b). Indeed, although the scope of employment related to the duties of a Member of Congress is undoubtedly broad and there are some activities that cannot be neatly cleaved into official and personal categories, Brooks’s request for certification and substitution of the United States for campaign-related conduct appears to be unprecedented. And in a variety of contexts involving state and local elected officials, courts have routinely rejected claims that campaigning and electioneering activities fall within the scope of official employment. Brooks thus has not sustained his burden of demonstrating that his conduct at the January 6 rally was undertaken in his official capacity.

In addition, the Complaint alleges that Brooks engaged in conduct that, if proven, would plainly fall outside the scope of employment for an officer or employee of the United States: conspiring to prevent the lawful certification of the 2020 election and to injure Members of Congress and inciting the riot at the Capitol. Alleged action to attack Congress and disrupt its official functions is not conduct a Member of Congress is employed to perform and is not “actuated . . . by a purpose to serve” the employer, as required by District of Columbia law to fall within the scope of employment. Restatement (Second) of Agency § 228(1)(c). Thus, 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 he did not engage in the conspiracy and incitement alleged in the Complaint.

Finally, the Court should deny the petition as to Counts 1 and 2 of the Complaint because they are not subject to the Westfall Act at all. Those claims seek to recover for alleged violations of 42 U.S.C. §§ 1985 and 1986, and the Westfall Act does not reach claims based on “a violation of a statute of the United States.” 28 U.S.C. § 2679(b)(2)(B).

That's basically the summary; after that it moves to "background" of the events. Regarding the meat of the legal basis for denying the petition they further say:

District of Columbia scope-of-employment law.
In considering scope-of-employment issues under the Westfall Act, the D.C. Circuit applies the respondeat superior principles of the jurisdiction “where the employment relationship exists.” Allaithi v. Rumsfeld, 753 F.3d 1327, 1330 (D.C. Cir. 2014) (quoting Majano v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006)). Here, Brooks’s employment relationship with the United States exists in the District of Columbia (which is also where the alleged tortious conduct occurred, see Compl. ¶¶ 105-09). The District of Columbia follows § 228 of the Restatement (Second) of Agency, which provides: (1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. Restatement (Second) of Agency § 228 (1958) (“Restatement”); see Wilson, 535 F.3d at 711; Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006). The District of Columbia scope test is an “an objective one, based on all the facts and circumstances.” Wilson, 535 F.3d at 711 (quotation omitted). Because the test under § 228(1) is framed in the conjunctive, all four elements of § 228(1) must be satisfied for a court to conclude that an employee acted within the scope of his office or employment. See Ballenger, 444 F.3d at 663.

And on the facts, the quoted bit actually appears again, in slightly different wording, followed by a lot of caselaw and some House manuals:

Members of Congress are subject to extensive restrictions that carefully distinguish between official functions and unofficial activity, including electioneering and campaign efforts. It is undisputed that Brooks addressed the crowd at the January 6 rally. See Brooks Aff. 18–21. And Brooks does not dispute Plaintiff’s allegations that the rally “was funded and organized by [the Trump] campaign and groups supporting [then-President Trump’s] candidacy.” Compl. ¶ 14. Nor does he dispute Plaintiff’s allegations that the purpose of the rally was to advocate that Donald Trump should be declared the winner of the 2020 election. Indeed, Brooks states in his petition that his conduct was “primarily motivated by” his “desire to represent the will of” his constituents “who overwhelmingly preferred that Donald J. Trump serve as President.” Pet. 7. And he further describes his actions as intended to influence the 2022 and 2024 elections. See, e.g., Brooks Aff. 13 (“I am talking about ‘kicking ass’ in the 2022 and 2024 ELECTIONS!”). Brooks thus has not met his burden to show that his activities at the January 6 rally were within a Representative’s scope of employment related to his official duties. [...]

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.

Chairperson Lofgren states that the House adheres to this distinction in setting forth ethics rules that distinguish between a Member’s official duties and conduct that must instead be deemed unofficial. Thus, she explains, “standards of conduct that apply to Members and precedents of the House are clear that campaign activity is outside the scope of official duties and not a permissible use of official resources.” Lofgren Letter 4; id. at 2 (campaign activity is “not permissible official activity” for Members). And “[o]fficial resources of the House must, as a general rule, be used for the performance of official business of the House, and hence those resources may not be used for campaign or political purposes.” Id. at 2 (quoting H. Comm. on Ethics, General Prohibition Against Using Official Resources for Campaign or Political Purposes, https://ethics.house.gov/campaign/general-prohibition-against-using-officialresources-campaign-or-political-purposes).

The House requires Members to determine whether their activities are official or campaign-related. In using House funds, Members must distinguish their functions: “Is the primary purpose for the expenditure official and representational? Or is it primarily related to personal, campaign-related political party, campaign or committee activities?” Members’ Congressional Handbook, 116th Cong. (Nov. 6, 2020). Members have in the past been admonished that political campaign speeches were not within their official duties. For instance, when a Member delivered two speeches regarding winning over women voters for the benefit of Republican candidates in future elections, the House Committee on Ethics found those speeches to be unofficial “campaign and political activities” notwithstanding the Member’s view that the speeches were “official.” House Comm. on Ethics, In the Matter of Allegations Relating To Representative Cathy McMorris Rodgers 28–29, 43 (Dec. 19, 2019) (Rodgers Report). The Committee reached that conclusion even though those two speeches were not delivered at campaign events favoring a particular candidate.

These distinctions “are based largely on a common sense understanding of the political and official activities” of federal officials, grounded in longstanding democratic norms. Payment of Expenses Associated with Travel by the President and Vice President, 6 Op. O.L.C. 4 (1984) (“Payment of Travel Expenses”). Thus, “[a]ppearing at party functions, fundraising, and campaigning for specific candidates are the principal examples . . . which should be considered political,” and not part of “official duties.” Id. at 4; see Gallant v. NLRB, 26 F.3d 168, 172 (D.C. Cir. 1994) (holding that creating letters for purpose of “retaining [official’s] job” rested on “purely personal objective” and were personal, not agency, records).

The same fundamental distinction between official duties and electioneering activity is also reflected in decisions applying state respondeat superior law. In cases involving state and local officials, courts around the country have repeatedly rejected claims that campaign activities fall within the scope of employment. The Supreme Court of Hawaii, for example, held that a city employee was not acting within the scope of his office or employment when he “delivered [a] speech as a political candidate” because “[h]is candidacy was not part of his job” and he was required “to conduct his campaign separate from his [official] duties.” Mehau v. Reed, 869 P.2d 1320, 1332–33 (Haw. 1994); see Williams v. Gorton, 529 F.2d 668, 672 (9th Cir. 1976) (holding in absolute-immunity context that even speech relating to “official activity” could be “shown to be purely electioneering in a private capacity” due to the campaign context). Other decisions likewise recognize that the scope of an elected official’s employment does not extend to “personal ventures such as electioneering, campaigning or fund raising meetings to pay off campaign debts,” because “[t]hose activities are undertaken for the sole benefit of the elected official.” Ennis v. Crenca, 587 A.2d 485, 490 (Md. 1991) (concluding that local legislator’s actions were “similar to electioneering activities and not to those activities of a legislator furthering the county’s business”); see, e.g., Glacken v. Incorporated Vill. of Freeport, 2014 WL 1836143, at *6 (E.D.N.Y. May 8, 2014) (finding incumbent mayor’s conduct outside scope as to “speech [that] occurred while he was campaigning for re-election at a Candidates Forum”); Dean v. American Fed’n of Gov’t Emps., Loc. 476, 509 F. Supp. 2d 39, 58–59 (D.D.C. 2007) (applying D.C. respondeat superior law and finding incumbent union president acted outside scope because his “allegedly defamatory e-mail in response to an email from a Local member specifically opposing his re-election in the upcoming Local election” was sent “in his capacity as an individual candidate for re-election” to a union office); Anderson v. City of Inkster, 2014 WL 3747545, at *2 (Mich Ct. App. July 29, 2014) (holding that “the campaign activities of an incumbent judge” running for reelection are “not within the scope of employment” because the effort “to further her reelection campaign” had to be characterized as “an individual interest, not an interest of the court”).

To be sure, the rally on January 6 differed from a typical campaign rally because it occurred two months after Election Day. But participating at a post-election rally that is paid for by a political campaign or its supporters, and that is concededly directed toward affecting the electoral outcome of a presidential election on behalf of a specific candidate or garnering support for the next election, is no less an electioneering or campaign activity. See Rodgers Report 28–29. Just like pre-Election Day efforts to affect the voting outcome of an election in favor of a particular candidate, post-Election Day efforts on behalf of a candidate to affect the outcome of an election in favor of that candidate are electioneering or campaign activities and thus not within the scope of a Member’s office or employment.

[...] Brooks offers only one reason why his participation at the January 6 rally would fall within scope. In his view, his conduct occurred “in the context of and in preparation for Congressional votes on January 6, 2021,” which concerned the certification of the Electoral College votes cast for the presidential candidates. Pet. 41. Brooks asserts that his conduct during the incidents alleged in the Complaint was related to his duty to vote on “whether to accept or reject the electoral college vote submittals of various states.” Pet. 41; see, e.g., Brooks Aff. ¶¶ 9, 11–12, 16–17, 21, 24–26, 28, 34–35, 37, 39–45, 47–49, 53-55. That is, Brooks argues that he participated in the January 6 rally in connection with his duty to participate in the certification of the presidential election.

But Brooks has not established that he was acting within the scope of his office or employment relating to participation in the certification of the electoral votes when participating in the January 6 rally. The Constitution requires the counting of votes for presidential candidates before the Senate and the House of Representatives, U.S. Const. amend. XII, and a federal statute prescribes a procedure for those bodies to assemble in the House Chamber to certify the votes (and to lodge objections), 3 U.S.C. § 15. This is no doubt a solemn duty of a member of Congress.

Brooks’s contentions, however, do not establish that his electioneering or campaign activities were within the scope of his office or employment relating to that role. Political campaigns and electioneering activity routinely address actions that candidates have taken or will take in their official capacities, such as voting on legislation. But the fact that such partisan campaign activities discuss a candidate’s official duties does not mean that those activities themselves are official duties or are within the scope of his office or employment that are properly regarded as incidental to those duties. See, e.g., Mehau, 869 P.2d at 1333 (observing that city employee’s “speech pertained to organized crime,” but concluding that it fell outside the scope of his employment in the prosecutor’s office because he “delivered the speech as a political candidate”); Glacken, 2014 WL 1836143, at *6 (holding that incumbent’s speech in response to question about pending legal action against the Village where he was mayor was outside the scope of his employment because it occurred while he was “campaigning for reelection”). So too here.

Brooks asserts that his conduct was within the scope of his office or employment because his vote was based on the fact that his “constituents overwhelmingly supported Donald Trump in the 2020 General Election.” Pet. 4; see also Brooks Aff. ¶ 9. It may be presumed that Members are representing their constituents when they vote. But Brooks’s logic goes too far. Under his view, it is not clear what limit there would be to his legislative functions; so long as he could point to some desire on some part of his constituency, any purely electioneering or campaign activity would fall within the scope of his office or employment and require the United States to bear responsibility for any alleged tortious conduct. Activities incidental to the duty to vote, such as garnering support from colleagues or the public, do not include expressive activity at a campaign rally in support of a particular candidate, “however deeply [the legislator] felt that his vote was the right thing to do,” and however deeply the legislator felt that his constituents supported the vote. Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 127 (2011). And addressing an electioneering rally is not a “direct outgrowth” or “an integral part” of the certification process established in 3 U.S.C. § 15. Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 32 (D.C. 1979).

Brooks also cites a number of decisions of the D.C. Circuit and other courts that have found defamatory comments by Members of Congress to be within the scope of those Members’ employment. See Pet. 35-41. But none of those decisions involved a Member’s direct involvement in electioneering or campaign activity at a campaign event organized to affect an electoral outcome. Instead, each case involved some incidental political purpose that arose out of the kind of conduct the Member was employed to perform. See, e.g., Ballenger, 444 F.3d at 664 (finding within scope remarks about personal life during press interview); Does 1-10 v Haaland, 973 F.3d 591, 602 (6th Cir. 2020) (finding within scope social-media posts that sought to “oppose the President and his legislative goals by putting on record their opposition”); Wuterich v. Murtha, 562 F.3d 375, 379 (D.C. Cir. 2009) (finding within scope congressman’s allegedly defamatory comments made in media interviews, and noting that a declaration had been provided by the defendant’s office confirming that the “interviews were not campaign related”); Williams v. United States, 71 F.3d 502 (5th Cir. 1995) (finding in scope remarks about another individual’s lobbying fees during press interview regarding naval warship).

Indeed, Brooks’s reliance on Operation Rescue underscores the relevant distinctions. In that case, the district court held that Senator Ted Kennedy had acted within the scope of his office or employment when he made comments to the media about a bill he was supporting in the Senate. 975 F. Supp. at 108. Although the plaintiff had argued that the comments fell outside the scope of employment of a Senator because they were made during a fundraising event, the court found as a matter of undisputed fact that the comments “were not made gratuitously in Senator Kennedy’s speech at the fundraising event” but rather occurred only after that event. Id. (emphasis added). Brooks’s conduct at candidate Trump’s political rally bears no similarity to the facts at issue in the cases Brooks cites.

So, if I'm allowed my own commentary, it appears that the DOJ is trying to walk the fine line between statements to the press, which generally were covered by Westfall caselaw and speeches at campaign [type] rallies.

Regarding "the other leg" of the denial (that the court should first decide whether Brooks was acting against his employer's interests when he allegedly directed the crowd to the Capitol) they only cite one case basically:

Cf. Osborn v. Haley, 549 U.S. 225, 252 (2007) (recognizing that scope-of employment questions may overlap substantially with the merits of a tort claim).

Now since you also mentioned "representation", the Office of General Counsel of the House of Representatives has refused to be involved... because the lawsuit opposes two members of the House (in their individual capacity).

Further case files here: https://www.courtlistener.com/docket/59707490/swalwell-v-trump/

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  • Thank you and yes I appreciate your interpretation. The courtlistener.com link was most valuable, I've never used that before. Sadly, using the district court's library has become near-impossible for me and many others.
    – T Battel
    Oct 4 '21 at 16:37

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