Thursday Reads

Max Beckman, Woman in Chair Reading at Beach, 1939

Good Morning!!

Yesterday Joe Biden got another big win when his infrastructure bill got more than 60 votes to begin consideration in the Senate.

The Washington Post: Bipartisan infrastructure pact clears key Senate vote after breakthrough in talks.

Trump Crimes Breaking News

Josh Dawsey and Devlin Barrett at The Washington Post: As Trump pushed for probes of 2020 election, he called acting AG Rosen almost daily.

January 6 Investigation News

Politico: Jan. 6 select-panel Dems confident they can corral ex-Trump aides.

Lawmakers on the Jan. 6 select committee describe their probe’s reach as still undefined, saying in interviews that they have yet to formalize the confines of an already closely watched and fast-moving investigation. Minutesbefore the panel’s first hearing on Tuesday, however, its members scored a key win thanks to a legal opinion from President Joe Biden’s Justice Department that allowed them to freely seek witness statements from former Trump administration officials.

“That means the likelihood of any resistance from the committee’s work from former [Trump] employees or current employees is not an impediment,” Rep. Bennie Thompson (D-Miss.), who chairs the Jan. 6 probe, said in an interview. The Biden DOJ’s decision “expedites” the panel’s work digging into the insurrection, he added….

The panel only recently hired its senior staff and launched its website — and it has more work to do before it can seek out potential Trump-adjacent witnesses such as Minority Leader Kevin McCarthy (R-Calif.) or Gen. Mark Milley, the chair of the Joint Chiefs of Staff.

Woman Reading at a Dressing Table, Henri Matisse, 1919

“I think the true scope of the investigation is still under development,” Rep. Elaine Luria (D-Va.), a member of the select panel, said in a brief interview. “I know that we will build on work that’s already been done by other committees.” [….]

Rep. Jamie Raskin (D-Md.), another select committee member, echoed Luria and Thompson about the still-undefined scope of the investigation. But he said it was critical that the panel examine coordination efforts by the extremist groups that marched on the Capitol that day — a process that includes studying the hundreds of criminal prosecutions helmed by the Justice Department.

“[We] want to know who was the ultimate organizer and who paid for all of this action and how did it come about and are they still out there,” Raskin said.

Alabama Rep. Mo Brooks, who on January 6 told the insurrectionists to “start taking names and kicking ass,” has been busy destroying his own defenses for his actions on the day of the attempted coup.

Mark Joseph Stern at Slate: Mo Brooks Accidentally Gave Up His Immunity From Eric Swalwell’s Insurrection Lawsuit.

On Tuesday, the Department of Justice announced that it would not shield Rep. Mo Brooks from Rep. Eric Swalwell’s lawsuit against the fomenters of the Jan. 6 insurrection. The DOJ’s decision may seem surprising: After all, Attorney General Merrick Garland has continued to protect Donald Trump from E. Jean Carroll’s defamation lawsuit, signaling a broad view of elected officials’ immunity from civil suits. In Swalwell’s case, however, the Justice Department seized upon comments demonstrating that, at the Jan. 6 rally, Brooks was acting not as an elected official, but as a politician seeking to influence future elections. Ironically, it was Brooks himself who made these statements, under oath, in an effort to evade this very lawsuit. The congressman’s legal defense has turned into a legal liability.

Frédéric Soulacroix (1858-1933), French painter.

Swalwell’s lawsuit marks a serious effort to hold Brooks, Trump, and Rudy Giuliani accountable for their conduct at the rally that preceded—and incited—the Jan. 6 insurrection. He sued all three defendants for civil rights violations, as well as more garden variety misdeeds known as torts. In this case, Brooks’ alleged torts included negligence, aiding and abetting common law assault, intentional infliction of emotional distress, and bias-related crimes. Brooks sought to dismiss these tort claims by invoking the Westfall Act. Under this statute, a federal official facing a civil suit can ask the Department of Justice to certify that they were acting within the scope of their employment when the alleged tort occurred. If the DOJ agrees, the United States is substituted as the defendant. And because the U.S. cannot be sued for a wide range of torts, that substitution usually ends the case.

Predictably, Brooks asked the Justice Department to certify that he was acting as an employee of the federal government carrying out his official duties at the Jan. 6 rally. This argument is hard to swallow. Then again, so was Trump’s assertion that defaming E. Jean Carroll was a presidential act, yet Garland’s Justice Department still endorsed his theory. What appears to have made the difference in this case is Brooks’ own inadvertent admission that he was acting as a campaigner, not a congressman, on the morning of Jan. 6.

This admission was prompted by a claim at the heart of Swalwell’s lawsuit: that Brooks urged the crowd to commit violence at the Capitol. Central to Swalwell’s theory was a segment of Brooks’ speech in which he declared: “Today is the day American patriots start taking down names and kicking ass!” Brooks continued:

“Now, our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives, to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you: Are you willing to do the same? My answer is yes. Louder! Are you willing to do what it takes to fight for America? Louder! Will you fight for America?”

In a long, rambling affidavit, Brooks tried to counter this allegation by reframing his call to begin “kicking ass.” He testified that, in this passage, “I am talking about ‘kicking ass’ in the 2022 and 2024 ELECTIONS!” [….]

This narrative provides perhaps the most self-defeating explanation Brooks could possibly muster at this stage in litigation. As the Justice Department pointed out in its Tuesday filing, “activities specifically directed toward the success of a candidate for a partisan political office in a campaign context” are “not within the scope of the office or employment of a Member of the House of Representatives.” That’s because it is not the “business of the United States to pick sides among candidates in federal elections.” Representatives thus cannot invoke the Westfall Act’s protections when they are engaged in “campaign efforts.”

Jim Newell at Slate: Turns Out Mo Brooks Was Wearing Body Armor to Trump’s Very Peaceful Jan. 6 Rally.

Back in December, Brooks was the first House Republican to say ahead of the congressional Electoral College certification that he would object to certain states’ electors. On the day of the certification, Jan. 6, he then gave a fiery speech at President Donald Trump’s rally at the Ellipse where he told the assembled crowd that “today is the day American patriots start taking down names and kicking ass!” Months later, he still argues that Trump would have won the election if only “lawful votes” were counted.

Brooks, like Republican leaders who tried to counterprogram the hearing with a press conference yesterday, thinks a proper investigation would look at why House Speaker Nancy Pelosi’s office wasn’t “doing a better job with respect to the Capitol Police and their level of preparation.”

Then, to prove his point about preparation, he revealed a new detail to me: that because of a tip he’d received about potential violence, he’d been wearing body armor at the very same Ellipse speech in which he encouraged rally attendees to “start taking down names and kicking ass.”

“I was warned on Monday that there might be risks associated with the next few days,” he said. “And as a consequence of those warnings, I did not go to my condo. Instead, I slept on the floor of my office. And when I gave my speech at the Ellipse, I was wearing body armor.

“That’s why I was wearing that nice little windbreaker,” he told me with a grin. “To cover up the body armor.”

Who was this source? The Committee is probably going to want to hear from Brooks about all this.

Could it have been this guy?

I have a few more links to add in the comments. What’s on your mind today? This is an open thread.