Earlier today, the Department of Justice determined that they would not be representing Mo Brooks in his attempt to defend himself against a lawsuit from Eric Swalwell because: “The record indicates that Brooks’s appearance at the January 6 rally was campaign activity…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.”

Earlier on today, House Counsel for the United States House of Representatives, reached the same conclusion, declaring that: “Given that the underlying litigation was initiated by a current Member of the U.S. House of Representatives individually suing another current House Member individually and does not challenge any institutional action of the House or any of its component entities, the Office has determined that, in these circumstances, it is not appropriate for it to participate in the litigation.”

The combination of these two announcements means that there are now two Federal entities that have made a determination that Brooks’s behavior at the Ellipse on January 6th did not serve any legislative purpose, nor did it constitute an official government act. This ruling effectively nullifies any chance that Brooks may have had by trying to defend himself by citing either the Speech and Debate clause of the Constitution, or the legal immunity granted to lawmakers.

The Speech and Debate clause states that lawmakers have legal immunity for all legislative functions, and is generally applied to any discussions that occur between lawmakers. However, the Speech and Debate clause does not protect speech that occurs as part of inter-branch communications, or speech that occurs while individuals are engaged in partisan political activity, such as making an appearance at a campaign rally.

Legal immunity for Federal lawmakers is a tradition derived from Common Law and was codified by the Supreme Court decision in Tenney v. Brandhove, where the court held that:

“(a) The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has been carefully preserved in the formation of our State and National Governments. Pp. 341 U. S. 372-375.

(b) By 8 U.S.C. §§43 and 47(3), Congress did not intend to limit this privilege by subjecting legislators to civil liability for acts done within the sphere of legislative activity. P. 341 U. S. 376.”

Again, the catch for brooks is “…within the sphere of legislative activity.” and now that there’s a record of two authorities declaring that Brooks’ behavior at the Ellipse served no legislative purpose, it will be extremely difficult for him to convince a judge that he should be protected by either the Speech or Debate clause or Legislative Immunity. He’s effectively being sued in his capacity as a US Citizen, and is not likely to have any of the special privileges or immunities granted to lawmakers to aid in his defense.