Justice Department lawyers said Tuesday night that they will not defend Rep. Mo Brooks (R-Ala.) from a lawsuit over the riots at the U.S. Capitol, saying they do not believe the lawmaker was acting in his official capacity when he spoke at a Jan. 6 rally ahead of the violence.

Brooks had asked that the counts against him in the civil lawsuit from Rep. Eric Swalwell (D-Calif.) be dismissed and the U.S. take over for him as a defendant in the case, arguing he was acting in his official capacity when he spoke at a rally at the Ellipse on the morning of Jan. 6. Legal experts said, due to past precedent and a recent decision by the Biden DOJ to keep up its defense of Donald Trump in a defamation lawsuit, that government lawyers might have to side with Brooks’ request.