Rep. Eric Swalwell, D-Calif., is trying to sue his Republican colleague Rep. Mo Brooks, R-Ala., for allegedly inciting the Jan. 6 insurrection at the U.S. Capitol.
Just one problem: Swalwell's lawyers can't find Brooks to serve him with the lawsuit.
In a federal court filing Wednesday, Swalwell's lawyers revealed that they had hired a private investigator to attempt to serve Brooks with the suit, which claims that the Alabama Republican's speech at then-President Donald Trump's rally on Jan. 6 helped incite the riot.
"Today is the day American patriots start taking down names and kicking ass," Brooks said at the rally, which also featured speeches from Trump, Donald Trump Jr. and Rudy Giuliani. All four are named in Swalwell's lawsuit. Trump, Trump Jr. and Giuliani have moved for dismissal of the complaint.
Representatives for Brooks could not be immediately reached for comment. When Swalwell's suit was initially filed in March, Brooks tweeted that the accusations against him were "frivolous" and "meritless."
In the filing, Swalwell's legal team said it spoke with two members of Brooks's staff who promised to return calls but never did.
"Counsel spoke to two different staff members on two separate occasions, and each time was promised a return call that never came," the attorneys wrote.
Swalwell's lawyers said their attempts to serve Brooks personally have been hampered by the increased security around the Capitol in the wake of the siege.
"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," the attorneys wrote. "Until very recently, public access to the Capitol grounds — including the Rayburn House Office Building, where Brooks' office is located — has been completely cut off, with only Members of Congress and their credentialed staff having access."
They added that their private investigator "spent many hours over many days in April and May at locations in multiple jurisdictions attempting to locate and serve Brooks, to no avail."
Swalwell's lawyers asked federal Judge Amit Mehta for a 60-day extension to serve Brooks with the lawsuit, and the request was granted. However, Mehta refused to allow Swalwell's legal team to enlist the help of the U.S. Marshals Service in serving Brooks, citing "separation-of-powers concerns."
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