Rep. Mo Brooks (R-GA) contends that he cannot be sued by Rep. Eric Swalwell for a speech he gave at a rally before the Capitol riots. But the Justice Department said in a filing Tuesday that Brooks is not entitled to immunity as a federal employee because his rally comments—in which he told the MAGA crowd to “start taking down names and kicking ass”—were not part of his duties as an elected official but a campaign speech, The Washington Post reported. “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,” said the agency—which has historically deemed public statements by federal workers as protected.

Brooks told the Post he disagrees. “If that is the standard, then everything that is done in Congress is campaigning because everything that is done in Congress affects campaigns,” he said. The court will now have to decide if Swalwell’s suit against Brooks can proceed.