The Westfall Act grants federal employees legal immunity if they were acting in the scope of their employment. Trump could use it in a lawsuit.
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Typically, federal employees are legally protected from being personally sued if they were doing their jobs.
That's because of a little-known law called the Westfall Act, which draws its name from a 1988 Supreme Court case.
On Tuesday, the Department of Justice said Rep. Mo Brooks' January 6 speech before the Capitol attack was outside the scope of his employment and requested he be denied legal immunity via the Westfall Act.
Rep. Eric Swalwell is suing Brooks, alleging the Alabama Republican helped "incite the violence at the Capitol" when he told protesters to "start taking down names and kicking ass." The California Democrat is also suing former President Donald Trump, Donald Trump Jr., and Rudy Giuliani, alleging they "are responsible for the injury and destruction that followed."
The DOJ's decision is not binding, and a judge could still say Brooks was acting in the scope of his employment and that he should receive immunity. If District Judge Amit P. Mehta agrees with the DOJ, then Brooks will be forced to retain private legal counsel for the duration of the suit.
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Donald Ayer is a former US attorney and was the deputy attorney general under President George H.W. Bush. He represented the Westfall case at the Supreme Court. He told Insider that the DOJ's filing regarding Brooks' employment showed that trying to subvert an election did not fall under the scope of a congress member's job.
"The really big, huge point here," Ayer said, "is that when someone engages in conduct whose apparent goal is to undermine the basic functioning of the government - including the certification of electoral results - it is not in the scope of employment for anybody who has taken an oath to support and defend the Constitution of the United States."
If the DOJ had certified that Brooks was acting within the scope of his employment, Ayer said, it could lead to government employees being found immune from liability for actions directly undermining the US government, perhaps including acts of treason.
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The Westfall Act, formally known as the Federal Employees Liability Reform and Tort Compensation Act of 1988, was passed to modify the Federal Tort Claims Act from 1946, which allowed people to sue their state or federal government.
In 1971, the Supreme Court ruled in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that individual federal employees could be sued as well.
But the high court ruled in Westfall v. Erwin in 1988 that federal workers could receive legal immunity if they were acting within the scope of their employment and with discretion. The court's ruling did not grant federal workers legal immunity for negligence on the job, opening up a large avenue to sue federal workers for small violations.
In response, Congress quickly passed the Westfall Act, granting legal immunity to federal employees facing charges for "negligent or wrongful acts or omissions" as long as they were working within the scope of their employment.
If a federal employee is granted protections under the Westfall Act, the US government replaces the employee as the defendant in the lawsuit and the case moves to a federal court.
Unlike Brooks, Trump and his attorneys have not filed any requests to determine if the former president's speech on January 6 acted within the scope of his employment.
In a memorandum of support to dismiss Swalwell's lawsuit, Trump's attorney said Trump had "absolute presidential immunity" because of previous legal precedents set by President Richard Nixon that granted the president "absolute immunity from damages liability predicated on his official acts." But notably, the ruling covers only criminal lawsuits.
Trump's attorneys still cited the Westfall Act in their memo of support as a reason to grant him immunity in civil suits. His legal team alleges that Trump's speech before the insurrection was "political speech" and therefore within the scope of his employment.
Department of Justice
Under Attorney General Merrick Garland, President Joe Biden's DOJ has continued to argue in an appeals court that Trump should receive Westfall Act protections.
The columnist E. Jean Carroll accused Trump of raping her in the 1990s, and while denying the allegation, Trump criticized her in a series of interviews and said she was "not my type." Carroll sued Trump, alleging defamation in 2019, which led then-Attorney General William Barr to certify that Trump was acting within the scope of his employment.
But the district judge in the case rejected the DOJ's argument and said that Trump's statements against Carroll were not made in the course of his employment and that his words in this scenario would not fall under the Westfall Act. Trump appealed the decision, and Garland maintained Barr's position in the case that Trump's statements were part of the job.
Ayer told Insider that Garland faced a substantial challenge to restore trust in the Department of Justice after the "highly political administration of Attorney General William Barr."
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"I think that Garland has wisely bent over backwards to avoid any impression that he may be acting for political reasons," Ayer said.
Neama Rahmani, a former federal prosecutor and the founder of West Coast Trial Lawyers, told Insider that the DOJ's decision about Brooks signaled a shift in how the Justice Department deals with Westfall Act-related cases. He said it could also mean that Garland's DOJ reverses course on his decision to uphold Trump's legal immunity in the Carroll lawsuit.
"If they sort of continue on this path, I would expect them not to defend these types of lawsuits if they're not defending Brooks," Rahmani said.
While US presidents have historically received what amounts to nearly blanket immunity in lawsuits, Rahmani said the DOJ's Brooks decision could be the first of several January 6-related cases in which the department reaches its boiling point and declines to defend federal employees, namely Trump.
"This may be the first of many cases where the Department of Justice says, 'Look, we're not going to defend you. You don't have immunity if you cross the line,'" Rahmani said.
