The U.S. Justice Department will not defend Republican congressman Mo Brooks in a lawsuit that alleges he conspired to instigate the Jan. 6 riot at the U.S. Capitol - when he addressed the crowd of Trump supporters on that day - before they stormed the Capitol.BROOKS: ”Today is the day American patriots start taking down names and kicking ass.” The lawsuit against Brooks was brought by Democratic congressman Eric Swalwell… who has also sued former President Donald Trump for allegedly conspiring to incite the attack when he encouraged supporters to stop the certification of Joe Biden’s electoral victory. TRUMP: “We will never give up. We will never concede, it doesn't happen. You don't concede when there's theft involved."Representative Brooks had asked the DOJ to consider him covered by the Westfall Act, which protects federal employees from being sued for actions taken as part of their jobs. In a Tuesday court filing, the DOJ said it had determined that Brooks’ appearance at the rally was a campaign activity and not part of his job as a congressman. During the rally, Brooks referenced Americans who, in the past, had fought for their country. BROOKS: "Are you willing to do the same?"Trump supporters stormed the Capitol after the rally, breaking down barriers, clashing with police and forcing members of Congress to flee to safety. In Tuesday’s court filing, the DOJ said (quote) "Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative - or any federal employee…”The DOJ’s decision could indicate it may not defend Trump either.