Brooks said in a statement that he’s not avoiding the lawsuit and suggested the California Democrat could have handed him the suit during a House vote or that he could have been found at public appearances. He also criticized Swalwell’s unsuccessful request to use federal marshals to serve the lawsuit, which a judge said this week wouldn’t be allowed because of separation of powers concerns.
“I am avoiding no one. I have altered my conduct not one iota since Swalwell’s politically motivated, meritless lawsuit was filed,” Brooks said through a spokesman on Thursday.
Serving a congressman on the House floor could be difficult because Swalwell himself isn’t able to do it, under federal rules, and it’s possible the sergeant at arms would have to give permission for a process server. And the halls of Congress, as Swalwell’s filing claimed Wednesday, aren’t as accessible because of security.
Personally finding Brooks is one way to get him served, but it is not the only way. It is also possible for Brooks to have his staff or his lawyer help him accept the lawsuit, but they haven’t done that.
Brooks’ response comes after Swalwell’s attorneys asked in a court filing Wednesday for additional time to try to get the lawsuit to Brooks.
After Swalwell sued in March, his attorneys tried to reach the Alabama Republican through calls to the congressman’s office and by sending a letter to formally provide him notice he had been sued, a necessary step in this type of court proceeding.
When they couldn’t get the lawsuit to Brooks, the Swalwell legal team hired a private investigator to find him — only to be hampered in April and May partly by the visitor lockdowns around the US Capitol complex, which were put in place for Congress’ protection after the siege, according to their filing Wednesday. Following the Swalwell team’s calls to Brooks’ staff members, they emailed, too, and did not receive a response.
“Plaintiff had to engage the services of a private investigator to attempt to serve Brooks personally — a difficult feat under normal circumstances that has been complicated further in the wake of the January 6 insurrection at the Capitol that Defendants incited,” Swalwell’s court filing continued. “Plaintiff’s investigator has spent many hours over many days in April and May at locations in multiple jurisdictions attempting to locate and serve Brooks, to no avail.”
Brooks’ co-defendants, including ex-President Donald Trump, had lawyers who accepted the lawsuit for each of them.
Trump has already argued in court that he can’t be liable for the insurrection.
In the suit, Swalwell alleges that Trump, his son Donald Trump Jr., Trump’s former lawyer Rudy Giuliani and Brooks broke Washington, DC, laws, including an anti-terrorism act, by inciting the riot, and that they aided and abetted violent rioters and inflicted emotional distress on members of Congress.
Swalwell claims that the four men prompted the attack on Congress with their repeated public assertions of voter fraud, their encouragement that supporters go to Washington on January 6, and in their speeches that day. Each man had told the crowd that Joe Biden’s electoral certification in Congress could be blocked, and that Trump’s supporters should fight, the lawsuit alleges.
Brooks spoke at the pro-Trump rally on January 6, saying, “Today is the day American patriots start taking down names and kicking ass.” He then asked the rally attendees if they were willing to fight.
Brooks has denied responsibility for the riot, calling Swalwell’s lawsuit a “meritless ploy” and telling a radio show host the day after the attack that he “absolutely” had no regrets. He later said in a statement, “No one at the rally interpreted my remarks to be anything other than what they were: A pep talk after the derriere-kicking conservatives suffered in the dismal 2020 elections.”