Justice Dept. Won't Defend Republican Representative

patriots start taking down names and tickets. Brooks wanted the Justice Department to defend him against a lawsuit accusing him of helping to incite the attack, which would have effectively given him immunity, but the Justice Department refused, joining me. As constitutional law professor Stephen Vladdock of the University of Texas Law School, this involves the west Fall Act. Steve

tell us about it. So the Westpall Act this part of the Federal Tort Claims Act, which is statute where the federal government for the first time broadly opened itself up to lie at ability when federal officers acted within the scope of their employment commit towards negligence in a place that and the idea is that the federal government would stand in the shoes of its officers, at least in those cases where the officers were acting within the

both of their employment. The west Fall Act, which was an accid in, basically expands that to include cases where plaintiffs have still tried to sue the officers, so as opposed to where the plantiffs suits the United States itself. Now, the Westpall Act is a mechanism for officers to say, wait a second, you can't sue me. This is the kind of suits that has to proceed against the United States directly under the sec A. Now, why did mole Brooks argue that he should be covered under the west

Fall Act. So there's sort of two interesting hooks to the mob Brooks argument. The first is his claim that as a member of Congress, he is an employee of the United States. We tend not to think of elected

officials employees. But second, and more importantly, his claim was that he was acting in his official capacity as a member of the US House when he made the remarks for which he's being shoes, and that therefore they fell within the scope of his official employment, such that if there's a claim here, it should have to be against the United States. And the reason why that's a big deal, students, because the west Ball Acts does not allow claims for

intentional sports against non law enforcement officers. So if in fact the west Ball Act substitution were permissive here, not only would the United States the substitutents defended, but the lawsuit would have to be dismissed. The Justice Department said it won't defend Brooks. Explain why they came to that decision in any Westball Act case sort of. The first question is d o J going to certify that the officer in question was in fact acting within socials employment.

D J did not certify that. Instead, d o J said that the exact distinction that the House rules draw between official business and campaign activity is exactly why Brooks was not acting within the scope of employment here, that he himself has said his appearance at the rally, his comments on Generous six, he has said those were all part of his sort of campaign side, which was actually largely designed as an argument to avoid internal consequences within

the House. The problem is that by making that argument, he has also, as d o J explained, fatally undermined the claim that it was therefore within the scope of his employment. But then DJ said, and in any event, in so far as the allegations in the lawsuit are true, and so far as wasn't fact inciting violence against Congress, it is impossible to imagine how that could be within the scope of his employment as a member of Congress

to incite violence against him and his colleague. Now the Justice Department said inciting attack on Congress quote is not within the scope of employment of a representative or any federal employee. Is this a signal that if former President Trump asks to be covered under the Westfall Act, that the Justice Department will say no to him as well? So maybe? I mean, I think a lot of folks have jumped to the you know, what does this mean

for President Trump? And we've already seen the o J controversially takes the position that Trump was acting within the schools employment when he defamed DJ and Carol. I think the o j's position in the bookcase doesn't necessarily committed to take from the same position in Trump case. I mean, there's an argument June that they made in the Carol

case that the president is always on duty. These things the President says are actually always within the scopeles employment in a way that's not true for members of Congress. But I do think there's at least the possibility that this line of reasoning that inciting an attack against Congress is not and cannot be part of one's official duties could show up again if and when this issue rears its head and some of the januous tips related lawsuits

against Trump himself. I mean, I think DJ now has left itself the ability to argue I think in both directions on that one. Do you think that the Justice Department intervening over the years in these cases has made it harder for courts to hold government employees account doable for wrongdoing? Absolutely? I mean, I think d J has historically taken a very broad and capacious understanding of the

term scope of employment within the Westball app. The case it always stands out to me about this June is a Guantanamo torture case where d o J took the position that torture of a detainee was within the scope of d o D officials employment torture, which can never be legal. It's hard for me to see how that could therefore otherwise be within the scope of employment and

their institutional reasons. June why politics aside, d j's interests invariably tilted in favor of defending officers of a certain broad understanding what scope employment means. That's part of why I wasn't surprised that d J did certify President Trump in the Gene Carrol case. But there is a stopping point, and I think that what Congressman Brooks is accused of doing on January six, if that were within the scope of these employment then it's hard to imagine what wouldn't be.

Folks may not like where d J has drawn the line between these two cases. I actually think, at least based on DJ's historical approach to this context, that distinction makes a lot of sense. Has the Supreme Court or have circuit courts ruled on this, sure, I mean there are tons of decisions about what scope of employment is and intentionally pretty broad. I mean there's a d C Scircuit case that then Circuit Judge kavanat Road where the

Court held it at least under d C law. So for officers who are operating within the District of Columbia, scope of employment is almost can amount to gist, are you on the job to heck with whether you had any legal authority for doing what you were doing, or you wearing your uniform at the time you did it. So there's a ton of Paseball about the west Ball app because this comes up a lot. Obviously there's less pace law involving members of Congress and the president, but

at least remembers of Congress, there's more than none. There's an important DC circuit case from the early two thousand's about a member of Congress acting within the scope of employment when he defamed um. There was a trick and he defamed one of the alleged participants, and the claim was how could that have anything to do with his job at The member of Congress in the court said, well, he did it well, speaking to a reporter on Capitol Hill as part of a presribution. That's how brass cases are.

That's why I think the OJ's behavior in the Trump cases so far has not been that surprising. What's your take on Trump's defense in the Capital Riot suit Absolute presidential immunity and nick and verss Gerald The Supreme Court said, Yes, presidents are entitled to apps for the immunity for any conduct while they are presidents that falls within the outer

perimeter of their officialty. And so I think it comes down to whether President Trump's January six speech and his other conduct on January six could plausibly said to be within the outer perimeter of his official duties. And I think there are large swaps of President Trump content on January sixs that clearly are and will be deempity, but I'm not sure all that will be. For example, the tweets he sent in the afternoon, it did not in fact actually tell people, at least initially to stand out

and go home. I mean, I think it's going to be a close call. I think it's going to be sort of some of it's protested, but not all of it. But I think that's where the fight is going to be, not the West ballot. Can Trump in the future ask the Justice Department to certify him under the West Fall Act, Yeah, I mean he can ask j to certify um. And there's a procedure in the West Blast where's DOJ declines to certify, he can ask the court to do it.

And so you know, that's also something that Congressman Brooks might now do the West Box. Interestingly, it does not impose a time limit on when such a request has to be made, so it's still possible that the West Ballast issue is going to have to be litigated in

the Trump case as well. I just think that's a much stronger argument that Trump will have is the Nixton versus the child argument, which is really gonna require courts to sort of break apart different things that he said and did leading up to and on January six and deciding to represent Trump in the defamation case. I mean, the Justice Department really didn't have to do that because the judge had already rejected the west Fall Act for Trump there and hadn't it's not appeal Well, so it

hasn't sinful I mean, so it hasn't sinfully litigated. Sod J made the west Fall a certification and then the court rejected it, and so that's what's being appealed, right. The District Court refused to accept the OJ certification um in the in the Carol case. That's what the second is not considering whether the distrec Court was wrong to reject case, whether it should have been accepted. Let's say Trump asks for certification under the west Fall Act in

the Capital Riot cases. What kind of argument could the Justice Department make to distinguish the Capital Riot case from the defamation case where they agreed to defend him since I think the biggest difference is the context June, where in the Carol case the defamation claim arises out of common Trump made is as part of the press gaggle,

where he was answering questions in his capacity as president. Now, I think there are plenty folks who still think that should not be enough, that just because he's answering questions doesn't free him from liability for things that have nothing to do with the discharge of his duties as president.

But that's the argument in that case, And I think the argument here would be, you know, the president inciting violent protests to disrupt the certification of his electoral defeat is not remotely within the scope of his official duties to nearly the same extent as answering questions in the press gradually, you know, I think there are folks who are going to think that both cases come out the

same way, whether for Trump or against him. I just think that there's plausible defense to seeing them as different in that respect. The House also refused to defend Brooks. Is that their own kind of analysis that goes on It's not a west fall Aft analysis, No, that's I mean, that's sort of the from the Houses. So the Westball access is purely about d o J's position, And indeed the Act is quite specific about the role of the Attorney General and the role of the Justice Department. The

House is the House. That's more from the perspective from the from the House rule purposes. Is this the case where book should be represented by House lawyers as opposed to private lawyers. There's actually nothing formal legally that turns on whether he's represented by House lawyers or not. Um, that's more just the question of who pays a legal bill.

The Select Committee wants to obtain all the communications at the White House and conversations with Trump that occurred surrounding January six, and the Justice Department formally declined to assert executive privilege over testimony related to January six. What does

that do? Because I think that the head of the committee, Congressman Thompson, said that it will make things easier for them, and I'm just wondering if it really will make things easier, well, I mean sons easier in the sense that you know, presumably there will be no one who has the standings

to assert a privilege claim. The problem that I foresee is the you know, the House still has to have some mechanism for compelling compliance with the is issued by the Select Committee, and it seems like the only way

to do that is to go to court um. And so you know, once you have the Select Committee trying to enforce subpoenas against calcitured witnesses, yes, there will be no good privilege defense because the OJ is not a certain privilege, but it will still take some time, you know, and it will still require courts to actually hold that there's no privilege defense, a matter that of course could

itself be appealed. So I guess I'm I'm a little more circumspect about how quickly that's going to go and how effectively the Committee will be able to enforce subpoenas, at least against private actors. Of course, I think subpoenas to the executive branch, it sounds like, are going to be generally complied with. And that may be what Congressman Thompson me is when talking about how much easier it's going to go. So you think that if the subpoena

let's say former Attorney General Bill Barr, that he'll comply. No, Actually, I'm not sure that if the former Jurney will comply. I think there will be at least some effort by private by people who are now private parties. You can test these subpoenas and courts even if they are unsuccessful. I think the reason why, from the perspective of Commerson Thompson,

that may not be that a good deal. It's because if the Biden administration is going to comply, then it may not need that much assistance from those former officials. Then it might have everything that needs on government servers right in the possession of the current executive branch. Right because what did he take about two years to get former White House Counsel Don McGan to testify after he was no longer the White House counsel? I mean, And so I think with private witnesses, it's not hard to

imagine how that history repeats itself. The big difference is that those private witnesses won't be nearly essential to the inquiry in a contest in which you have the Justice Department and a White House that are willing to cooperate. Thanks Steve. That's Professor Stephen Vladdock of the University of Texas Law School. Affirmative action was first introduced into this country sixty years ago, but it remains one of the most contentious issues, constantly little gated and discussed, as in

the Netflix series Dear White People. Hey, look, you guys still got affirmative action. I'm sorry, what exactly are you doing here? Alright? Obama right, leader of the free world. He gets into Harvard based on you too late affirmative action. You know he's not president right now, the guy who didn't get in. The goal of the group, Students for Fair Admissions is to eliminate race in college admissions decisions.

S f f A is behind the cases challenging the consideration of race and admissions at Harvard, Yale, the University of North Carolina, and the University of Texas at Austin. But a Texas federal judge has just tossed the case against U T. Austin, ruling that the issues had already been decided in the famous case of Fisher versus the University of Texas at Austin, which the group was behind and which reached the Supreme Court twice, which reached the

Supreme Court twice. Joining me is Andrey Anderson, head of the Higher Education practice at Bassbarian SIMS tell us about this case. In this case June, it was a second case that had been brought against the University of Texas at Austin challenging their race conscious admissions policies for undergraduate students.

The University of Texas had been sued earlier in the two thousand and eight two thousand nine time frame about their race conscious student admissions policies in that case went all the way to the Supreme Court, not once, but twice. This suit was a follow on suit that was filed within the last couple of years challenging those student admissions

practices again. Had the admissions practices changed at the University of Texas since the Fisher case, Well, that was one of the things that the parties in this case disputed a little bit. But no, the University Texas had not come out and said, oh, we're putting out a new students admissions program. We're doing something different, and that caused the point of to say, oh, well, we're going to

challenge this new program. The real reason that the plane of that the Students for Fair Admissions group challenged the University of Texas admissions policies again is likely that there was a change in the people who are now on the Supreme Court now as opposed to when they lost their earlier suit against the University of Texas. That is almost certainly what caused f f f A to bring this second suit. Tell us about the Fisher case that

went to the Supreme Court twice. What happened. Yeah, So, in in the Fisher case, it was brought by an individual plane I Abigail Fisher, a white woman, who was denied admission to the University of Texas, and she alleged at the University of Texas admissions program, which does consider race in a very limited way as part of a holistic review of student applications, that that consideration of race violated the Equal Protection Clause. And the Supreme Court looked

at that case two times. The first time they said that the lower courts had used the wrong standards in saying that the admissions program was constitutional, So they said, use the wrong standards, look at it again. The lower courts looked at it again and said, hey, we still

think this is constitutional. The Supreme Court looked at it a second time, and in two thousand sixteen, by a five four vote, held that the University of Texas is race conscious admissions program was constitutional, and I was surprised to learn that Abigail Fisher is also an officer and board member of Students for Fair Admissions. Yes, what was going on behind the scenes with all of this is uh wealthy businessman Edward Blum, who really was the moving

force behind the Fisher case. He knew Abigail Fisher's father, and as he was thinking about ways that he could challenge race conscious admissions programs and universities in America, he found out that Abigail had been denied admissions to the University of Texas, and he decided she would be a wonderful plaintiff and Texas would be a wonderful school to sue.

So he bankrolled the Fisher litigation. He chose the lawyers, he helped with the strategy, and then when they lost in Fisher, they started this organization called Students for Fair Admissions. The original board members were Edward Blum, Abigail Fisher, and

her father, Robert Fisher. That was the original board of the organization, and they then started looking for schools across the country that could be sued to further their goal of eventual Supreme Court holding that race may not be considered by universities in America for purposes of their undergraduate or any kind of admissions. So let's talk about the

court's findings first on the standing issue. Yeah, So, a standing is a concept that we have in the United States legal system that you cannot bring a lawsuit unless you have actually been injured by something that the defendant, the person you're doing, has done. And for the suit we're talking about here, it was brought by the organization

Students for Fair Admissions UM that Blum has created. So when you're looking at membership organization, which a s f f A says it is, they now have members, people who have joined the organization who say that, yes, we are all in favor of getting rid of the consideration of race in college admissions, and they've ay a five dollar membership B. When you have an organization like that, like then double a CP, the organization can sue if they can show that any one of their members has

been injured by the actions of the defendants. So that's how s f f A was bringing the suit. We have members. They said two of their members were white men who had applied to Texas and been denied admission. The university said, hey, wait a minute. First of all, you're not really a membership organization. You say you have

these members, but they're not real members. And they made a very technical argument based on um the by laws of the organization and the state law that the organization is organized under in Virginia, and the court denied that, as other courts have denied that argument. They said, no, we are going to look at this in a practical way. They put forward proof that they really are a membership organization, so we are going to allow them to bring this suit.

I think from a practical perspective, many of these universities say, hey, this is really just one guy, Edward Blum, who's on this quest to get rid of race conscious admissions, and he's kind of twisting this concept of a membership organization in order to work his will. And so that standing concept has been brought up in I think every one of these suits that s f f A has brought, and so far it's been denied. Every court has said no, we're going to treat f f f A as a

real membership organization. So that was no surprise that they were allowed to go forward and say you have standing to bring this lawsuits. Why did the court dismiss the case on the grounds of race judicata. Yeah, the other concept has a fancy or a Latin word race judicata, but it's a very practical concept that says, look, the courts are not going to decide the same lawsuit two times. We have too much to do. We're not going to

decide something a second time. So what you have to prove to show race judicata is that the parties in front of you this second time are the same parties or are what we call the law in privity with

one another. Maybe they aren't the same parties that were in the first lawsuit, but they nonetheless had some kind of control over the first lawsuit enough to say that, look, you had an ability to have your rights heard in that first lawsuit, And were the claims in the first lawsuit actually the same as the claims in the second lawsuit. If we can find that it's the same parties or the parties were in privity in both suits, and that the claims are the same in both suits, we're not

going to hear the second suit. We've already done this. So that's what was really an issue in the university's motion for summary judgment. That's how you bring one of these motions before the court. And the court here found that this second suit should be dismissed based on the principles of race judicata. So the court found that s f f A was in privity with Abigail Fisher in their first lawsuit. And they found that based on some

of the facts I was spinning out before that. Edward Blom is the president of s f f A. He's one of the board members. Abigail Fisher is one of the board members. Her father is a third board member. There are two other board members. But the court said that the three board members, Abigail, her father, and Edward Blum really had effective control over s f f A and what it does, especially when it comes to litigation efforts. And they said, those are the three people who also

controlled what happened in the Abigail Fisher case. So the parties were in privity with one another. And of course the defendants are the same. The University of Texas at Austin was the defendant in the first case is the defendant in the second case. So the court found, all right, we've got the same parties or their in privity with one another. Now the second question is are we looking

at the same claims. Well, the point of made that kind of easy for the court because the complaint in the second case looked very similar to the complaint in the first case in terms of what they were complaining about. S F F f A said, well, we're not complaining about the same thing because some of the facts have changed in the intervening ten years. They said that the University of Texas didn't use the same kind of language

to describe its use of race. So whereas in two thousand eight when Abigail Fisher was suing, they just said that race was a consideration, now in two thousand eighteen, two thousand nineteen they said it was a significant consideration. The court said, that's just semantics. You haven't pointed to anything they're really doing differently. And then the plants also pointed out, well, the state of research has really changed.

One of the things you have to prove if your university, in order to show that your program meets constitutional standards is you have to prove that you do not have race neutral options available to you that will get you the same level of diversity and S f f A said, look, there's all sorts of research that's been done in the ten years between the two suits that show that there are additional race neutral options that universities can use in

order to get greater diversity. And the court said, well, that may or may not be true. But in your two complaints race neutral options, you are saying that the University of Texas should use is exactly the same race neutral options in eighteen that you said that they should have used in two thousand eight. So we don't see that that's different either. So the court said, same claims. Parties are imprivity race judicata. We're not going to hear

the second lawsuit. I said that. They says it's going to appeal, But why appeal when they have three other cases and it would be going back to the Fifth Circuit which had ruled against them in the last case. Yeah, I think that's kind of a head scratcher to meet to June. And part of that is people often say that and then they don't end up appealing. You know.

One of the things that s f f A is trying to do is to get appellate decisions from different courts of appeals around the country that are in conflict with one another, because that's the best way to get

the Supreme Court to be interested in your case. Remember, their ultimate goal is to get the Supreme Court to look at this question that was decided in Fisher, and it was decided in the Michigan cases Grutter and Grats, to look at that question again and hold that actually, the Constitution does not allow colleges and universities to take race into account when admitting students to their schools and programs. The best way for them to do that is to

get different courts of appeals to say different things. The Texas is in the Fifth Circuit, and they don't have another case in the Fifth Circuit, so that would be a reason to try to keep that case alive. I wonder if it's more personal than that that they're still upset with the University of Texas is where Miss Fisher did not get admitted, and maybe they still just have

a bee in their bonnet about ut. I don't know, but as you said, they have three other cases and a lot of people are watching the Harvard case very closely currently at the Supreme Court. Supreme Court has shown some interest in the petition by asking the United States Full Ster General to file a brief in that case giving the government's views on whether or not the court should accept review of the case. And so that could get s f f A to its goal very quickly.

So the binding administration dropped the Trump administration's lawsuit against Yale in light of that, How do you think the s G will advise the justices? I would expect that the Solicitor General, in a bien administration and going out a little bit on a limb here, will say that the Supreme Court should not review the Harvard case. The first circuit in Harvard followed existing law. There's no reason

to review its decision. The Supreme Court does not typically reach out and review a case where the lower court has followed existing law and there is no split an authority between the courts of appeals. Thanks Audrey. That's Andrea Anderson of Bassbarian SIMS. And that's it for this edition of the Bloomberg Lawn Show. Remember you can always get the latest legal news on our Bloomberg Lawn Podcast. You can find them on Apple Podcasts, Spotify, and at www

dot Bloomberg dot com, slash podcast slash Law. I'm June Grosso, Thanks so much for listening, and please turn into The Bloomberg Law Show every week night at ten p m. Eastern right here on Bloomberg Radio.