Justice Department steps in for Nancy Mace

The Hill

3 days ago

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.
The Justice Department has been busy this year stepping in to defend a variety of government officials, not least of them 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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Ryan Routh wants 'prisoner swap'
The second man who attempted to assassinate Trump while he sought another term in the White House would like to be exchanged for prisoners held by a foreign adversary.
In a winding and at times bizarre letter to U.S. District Judge Aileen Cannon, alleged would-be assassin Ryan Routh said he had hoped that the government would swap him with prisoners held by Hamas, Iran, China or elsewhere 'so that I could die being of some use and save all this court mess.'
'But no one acts,' he wrote. 'Perhaps you have the power to trade me away.'
Routh explained that the government should be thrilled to send him away.
'What an easy diplomatic victory for Trump to give an American he hates to China, Iran or North Korea or wherever as a gesture of peace in exchange for an unjustly held democratic prisoner – everyone wins,' he said.
Routh also questioned 'why the death penalty is not allowed' in his case, claiming that his 'life of nothingness' should allow for it. The charges Routh faces carry a maximum penalty of life in prison.
It comes as Routh seeks to drop his public defenders and represent himself in his federal criminal case for allegedly plotting to assassinate Trump. He suggests in the letter that his attorneys refuse to answer his questions and do not want his case.
'I will be representing myself moving forward; it was ridiculous from the outset to consider a random stranger that knows nothing of who I am to speak for me,' he wrote. 'That was foolish and ignorant, and I am sorry – a childish mistake.'
The Hill requested comment from his public defenders.
Routh faces five counts including attempted assassination of a major presidential candidate over accusations he pushed the muzzle of a rifle through the perimeter of Trump's West Palm Beach golf course last year while the former president was a hole away, prompting a Secret Service agent to fire.
In a letter detailing his plans months before the Sept. 15, 2024, unsuccessful effort, he allegedly admitted to planning to assassinate Trump and apologized for failing.
The plot to assassinate Trump was the second such effort last year.
On July 13, 2024, a 20-year-old opened fire during a campaign stop in Butler, Pa., clipping Trump's ear and killing one of his supporters. The attempted assassin, Thomas Crooks, was killed by a Secret Service sniper.
Cannon, who was appointed by Trump and oversaw Trump's federal criminal case in Florida before it was dismissed, has not yet decided if Routh may represent himself.
He's set to go to trial on Sept. 8.
Los Angeles at heart of immigration raid litigation
The city of Los Angeles has emerged as a hot spot for critical litigation over Trump's immigration raids across the country.
It's the only place the president has activated the National Guard without the governor's consent, and in the last week, judges have issued rulings blocking indiscriminate immigration sweeps and bolstering press protections at protests.
Los Angeles's breakout role marks a critical juncture of the administration's raids and the ambitions of California Gov. Gavin Newsom, a Democrat widely viewed as a possible 2028 contender for president.
Newsom and the state's attorney general moved quickly to sue the Trump administration after the president sent thousands of National Guard troops to protect immigration officers amid protests in Los Angeles that have sometimes turned violent.
A federal judge deemed Trump's deployment illegal and forced him to return control of the troops to Newsom, but a federal appeals court panel put that order on pause.
As the appeal proceeds, U.S. District Judge Charles Breyer, the Clinton-appointed lower court judge, scheduled a three-day bench trial beginning Aug. 11. He's set to consider whether the troops' actions on the ground violate the Posse Comitatus Act, which limits the military from conducting civilian law enforcement domestically. …
But the Trump administration said late Tuesday it's rescinding the deployment of some 2,000 guardsmen, making uncertain the case's future.
The administration took another hit Friday to its efforts to conduct the widespread raids.
U.S. District Judge Maame Ewusi-Mensah Frimpong, a Biden appointee, ordered the administration to halt immigration stops and arrests without reasonable suspicion in Los Angeles and six other California counties. A lawsuit accused the administration of targeting brown-skinned people in Southern California without regard for their immigration status.
In fiery court filings, the government asked a federal appeals court to pause the order while the litigation plays out.
Justice Department lawyer John Blakeley castigated the judge for giving the government just two days to respond to the plaintiffs' submissions and having 'largely rubber-stamped' the challengers' proposed order days later.
'The result is a sweeping, district-wide injunction that threatens to hobble lawful immigration enforcement by hanging a Damocles sword of contempt over every immigration stop,' Blakeley wrote.
The appeals panel has not yet ruled on DOJ's request.
Also on Friday, a federal judge temporarily blocked Los Angeles police officers from using rubber bullets and other less-lethal munitions against reporters covering protests of the immigration crackdown.
The lawsuit, brought by the Los Angeles Press Club and an investigative reporting network, was filed last month over law enforcement's 'continuing abuse' against media covering the demonstrations.
U.S. District Judge Hernán Vera, a Biden appointee, said the journalists are likely to face irreparable harm by continuing to cover the protests without court intervention.
'Indeed, given the fundamental nature of the speech interests involved and the almost daily protests throughout Southern California drawing media coverage, the identified harm is undoubtedly imminent and concrete,' Vera wrote.
Abrego Garcia faces possible return to ICE
Wednesday marks a decisive moment for Kilmar Abrego Garcia, the man mistakenly deported to El Salvador, as he faces a potential return to immigration custody.
Ever since he was returned to the United States last month, federal authorities have detained him in Tennessee on his human smuggling criminal charges.
But that could soon change. A magistrate judge ruled the government can't justify detaining him on the charges, and U.S. District Judge Waverly Crenshaw, a former President Obama appointee, may order his release as soon as a hearing set for 1 p.m. CDT.
If that occurs, Abrego Garcia will not go free. He is expected to immediately enter custody of Immigrations and Customs Enforcement (ICE).
The administration has repeatedly declined to finalize what would happen next, saying they don't make those decisions until someone is in ICE's hands.
But Abrego Garcia's lawyers are concerned a plane is gassed up and ready to deport him within hours.
Here's a look at the administration's options heading into Wednesday's hearing:
Lift order preventing El Salvador deportation: An immigration judge in 2019 protected Abrego Garcia from being deported to El Salvador over gang threats to his family's pupusa business, an order known as a 'withholding of removal.' The administration violated the order by deporting him there anyways in March. Now, the government is signaling it may try to re-open the proceedings so it can lift the order and validly deport him to El Salvador, again.
Third-country deportation: The 2019 ruling does not protect Abrego Garcia from deportation to other countries. Last week, the Justice Department said their current plan was to remove him somewhere else, known as a third-country deportation.
Once a country is identified, the administration's policy guidance could place Abrego Garcia on a plane in a matter of hours. If the third country assures a migrant won't face persecution and the State Department finds that credible, the migrant can be removed without any further procedures, the guidance states.
According to a senior ICE official's testimony last week, Mexico has given assurances for migrants of certain nationalities and South Sudan appears to have done so as well.
Otherwise, the guidance provides the migrant an opportunity to raise persecution claims with an immigration officer.
Not swiftly deport him: It's possible the administration will not swiftly deport him and instead keep him in the country until he faces trial.
Sidebar
5 top docket updates
Birthright citizenship order blocked, again: A federal judge blocked Trump's birthright citizenship order for a nationwide class of babies who would be denied citizenship.
RIFs resume: The Supreme Court allowed a wide swath of federal agencies to resume planning for large-scale reductions in force.
Education Department gutting OKed: The Supreme Court allowed the Education Department to restart mass layoffs and other efforts to gut the agency.
Dem AGs sue Trump: Washington, D.C., and 24 Democratic states sued the Trump administration for freezing $6 billion in after-school program funding.
DOJ goes after California: The Justice Department sued California's education department for refusing to comply with Trump administration orders to ban transgender girls from girls' school sports teams.
In other news
Hill Nation summit: Join The Hill and NewsNation on Wednesday for the inaugural Hill Nation Summit, a full-day bipartisan gathering in Washington, D.C., featuring titans of government, business and policy. Watch interviews with Speaker Mike Johnson (R-La.) and more at this link.
Judges rebuff Trump prosecutor pick: Without explanation, the judges of the U.S. District Court for the Northern District of New York declined to appoint John Sarcone as the district's chief federal prosecutor, putting his future in limbo. Trump named Sarcone as interim U.S. attorney in March. But federal law provides the interim appointment only can last for 120 days. The judges had the authority to keep him in the role indefinitely until Trump fills the vacancy, but they declined to do so.
Epstein spillover: The Justice Department is opposing Jeffrey Epstein associate Ghislaine Maxwell's bid to overturn her conviction. It comes at an awkward time for the administration, which is actively beating back criticism for declining to release additional information about the disgraced financier and his death by suicide.
Push intensifies to defeat Bove: Nearly 80 former federal and state judges sent a letter urging the Senate to reject Emil Bove's confirmation to a federal appeals judgeship.
On the Docket
Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:
Today:
A federal judge in Tennessee is set to consider whether Kilmar Abrego Garcia should be released before facing his criminal trial there, at which point he is expected to be transferred into immigration custody.
Thursday:
A federal judge in Massachusetts is set to hold a preliminary injunction hearing in two cities' challenge to the Trump administration's efforts to go after sanctuary cities.
Friday:
A federal judge in Texas is set to hold a preliminary injunction hearing in a lawsuit over Financial Crimes Enforcement Network's Geographic Targeting order which demands money services businesses in 30 zip codes report cash transactions over $200 to federal law enforcement to expose cartel crimes.
Monday:
The Supreme Court will announce orders.
A federal judge in Massachusetts is set to hold a summary judgment hearing in Harvard's lawsuit against the Department of Homeland Security for revoking its certification that allows international student enrollment.
Another Massachusetts federal judge is set to hold a hearing for injunctive relief in Planned Parenthood's challenge to the loss of much of its federal funding under Trump's 'big, beautiful bill.'
Tuesday:
No notable hearings scheduled.
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