President Trump's Justice Department (DOJ) has the back of Rep. Nancy Mace (R-S.C.) in its attempt to use an obscure law to protect her from a libel lawsuit.
The administration wants to largely step in for Mace against a man's defamation lawsuit concerning a House floor speech she gave that accused the man of being a predator.
If successful, the move would protect Mace from paying any damages over the libel claims, leaving taxpayers on the hook for any award and the federal government's representation.
The Justice Department invoked the Westfall Act, a 1988 law that increased protections for federal employees against lawsuits concerning things they did in the course of their employment.
U.S. Attorney Bryan Stirling certified that law includes Mace's speech and social media posts as well as the work done by her congressional staff, who are also named in the suit.
"Defendant Nancy Mace was acting within the scope of her office or employment as a Member of Congress at the time the alleged conduct took place," Stirling wrote in a court filing made public Friday.
Brian Musgrave, the plaintiff, is one of four men Mace named in the stunning February speech. The congresswoman made a series of allegations of sexual abuse and voyeurism, naming Musgrave, her ex-fiancé, and two other South Carolina men, all of whom deny wrongdoing.
When reached for comment, Musgrave's attorney, Eric Bland, pointed The Gavel to his interview with Post & Courier. Bland told the South Carolina outlet that the Justice Department's move is "ridiculous."
Mace's congressional office did not return requests for comment.
The Justice Department points to a long list of examples in which courts have found Members of Congress act within the course of their office when they communicate with their constituents from the floor or on social media. The examples cross party lines.
During the Biden administration, the Justice Department stepped in for Rep. Ralph Norman (R-S.C.) in a defamation lawsuit. A man arrested in Norman's district whose charges were dropped sued the congressman over statements on his Facebook page about the arrest. A judge dropped Norman from the lawsuit.
The Bush administration became the defendant in a 2005 defamation suit initially against then-Rep. Nick Rahall, who was sued by a man he called a "bigoted, right wing, redneck, racist wacko" to a television reporter.
The Clinton administration came to the aid of late Sen. Ted Kennedy (D-Mass.), who while pushing for a law mandating buffer zones around abortion clinics said an anti-abortion group had a "matter of national policy firebombing and even murder."
And even when the Justice Department hasn't stepped in on its own accord, judges have agreed with lawmakers that the law still protects them.
Courts ruled a group of Covington Catholic High School students involved in a widely publicized incident with a Native American elder on the National Mall could not seek defamation damages from Sen. Elizabeth Warren (D-Mass.) and then-Rep. Deb Haaland (D-N.M.) over their posts on X, then known as Twitter.
Paul Figley, a former deputy director of DOJ's Torts Branch, said that subbing in for lawmakers didn't happen often since the Westfall Act's passage but did come up here and there.
"The presumption was that anytime a member of Congress spoke, they were acting as congressmen," Figley said.
That's why it "came as a surprise" when in the context of the Jan. 6 Capitol attack, some lawmakers were deemed not to have been acting within the scope of their official duties.
DOJ, for example, declined to certify then-Rep. Mo Brooks (R- Ala.) claim he was acting officially when he delivered a speech to Trump supporters at the Jan. 6, 2021, "Stop the Steal" rally.
Figley said that, under the statute, a defendant can seek to have a judge certify that they were acting in their official capacity if the government declines to certify. But until cases like that percolate through the courts, the bounds of a federal employee's official duties remain loosely defined.
"It's still an open question," he said.
Mace is not the only government official Trump's DOJ has stepping in for. It's had its hand in some cases involving the president.
This year, DOJ has sought to step in on Trump's behalf in two civil matters: advice columnist E. Jean Carroll's defamation lawsuit and several consolidated suits over Trump's actions on Jan. 6, 2021. (You might recall we wrote about it in April in The Gavel.)
An appeals panel declined to let DOJ sub in for Trump in Carroll's case, and the question is still pending in the other consolidated suits.
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