A federal appeals panel ruled on Wednesday that the U.S. Constitution does not bar the Trump administration from bringing an assault charge against a Democratic member of Congress, reaffirming the limits of a protection that shields federal lawmakers from certain prosecutions.
Representative LaMonica McIver of New Jersey was accused last May by an ally of President Trump of using her forearms to push immigration agents during a frenetic clash that month outside a troubled migrant detention center in Newark.
No one was injured in the altercation outside the center, which is known as Delaney Hall. Ms. McIver has denied wrongdoing and argued that the prosecution represents an effort by Mr. Trump to use the Justice Department to intimidate political opponents and chill dissent.
“This is about weaponizing the Department of Justice” against “people that they don’t like,” Ms. McIver said in June after the judges with the U.S. Court of Appeals for the Third Circuit heard her appeal argument.
The panel ruled on Wednesday in a 49-page decision that the case could move ahead to trial, with one judge, Thomas L. Ambro, dissenting, in part.
Ms. McIver, who is now 40 and pregnant with her second child as she runs for a second full term in November, faces as many as 17 years in prison if convicted.
An outspoken critic of the president, Ms. McIver arrived at the federal immigration lockup on May 9, 2025, with two Democratic colleagues from the House to conduct an authorized congressional oversight inspection.
But the judges concluded that the 68-second skirmish outside the detention center, which led to the central charge she now faces, was excluded from a constitutional protection known as the speech-or-debate clause. That clause shields members of Congress from being prosecuted for actions they take while conducting official legislative duties.
Ms. McIver is charged with “assaulting, resisting, impeding and interfering with a federal officer” in an effort to block the arrest of Newark’s mayor, Ras J. Baraka. The judges wrote that the accusation “neither charges Congresswoman McIver for an act that is legislative in nature nor requires that she answer for any legislative act.”
The decision represents a victory for prosecutors in the U.S. attorney’s office in New Jersey, who had stressed that violent acts never qualified for legislative immunity.
Mark E. Coyne, a federal prosecutor, had argued that the Constitution does not prohibit inquiry into “illegal conduct simply because it has some nexus to legislative functions.” On Wednesday, prosecutors said they had no comment about the ruling.
Ms. McIver could now ask the entire Third Circuit to reconsider the panel’s ruling or seek a review by the Supreme Court. Her lawyer, Paul J. Fishman, a former U.S. attorney for New Jersey, said her legal team was “evaluating all possible next steps.”
“It is too dangerous if the Departments of Justice and Homeland Security are able to thwart members of Congress from inspecting an ICE detention facility, create chaos and then prosecute those members and pretend it was their fault,” Mr. Fishman said in a statement.
He had also argued that Ms. McIver was being selectively prosecuted because of her politics, contrasting the three charges she is facing with the pardons the president granted to his supporters after the Jan. 6 Capitol riot. The panel concluded that it had no jurisdiction to consider that claim.
At the time of his arrest last May, Mr. Baraka was campaigning for the Democratic nomination to run for governor.
According to body-worn camera footage from Mr. Baraka’s visit to Delaney Hall, an immigration agent said that Todd Blanche, then the deputy attorney general, had ordered that the mayor be taken into custody. “Even though he stepped out, I’m going to put him in cuffs,” the agent, Ricky Patel, said about Mr. Baraka, who had left the grounds of the privately run detention center. (The mayor had been invited by a guard to stand inside the jail’s gated perimeter about an hour beforehand.)
Mr. Baraka was then taken into custody in a nearby public area and charged with trespassing, over the loud objections of Ms. McIver and a crowd of demonstrators there to protest Mr. Trump’s immigration policies.
After Mr. Baraka was handcuffed and arrested, Ms. McIver and her colleagues completed their tour of the detention center.
Alina Habba, a former lawyer for Mr. Trump who at the time was the interim U.S. attorney for New Jersey, quickly announced that she was dropping the trespassing charge. But in the same news release she said that she planned to charge Ms. McIver with assault.
Last year, a trial judge, Jamel K. Semper of U.S. District Court in New Jersey, moved the case toward trial. Ms. McIver’s lawyers appealed, leading to Wednesday’s decision.
Ms. McIver said she was disappointed by the decision, which she said “emboldens the Trump administration to continue persecuting our most vulnerable communities, those who try to defend them and anyone who dares hold the president or his lackeys accountable.”
“This is not over,” she added.
The panel included judges nominated by three presidents. Judge Ambro was appointed during President Bill Clinton’s second term; Judge Stephanos Bibas was appointed during Mr. Trump’s first term; and Judge Cindy K. Chung was appointed during President Joseph R. Biden Jr.’s term.
The panel sent one of the indictment’s three counts back to Judge Semper for reconsideration, and it disagreed with his rationale for refusing to dismiss another charge, offering what the panel called “an important clarification.”
Ms. McIver, the panel ruled, was exempt from prosecutorial immunity not because she was outside the perimeter of the detention center at the time of the clash, as Judge Semper concluded. Rather, they wrote, the nature of the alleged conduct barred her from immunity.
“Any conduct Congresswoman McIver took that was investigative in nature was legislative, whether that conduct took place inside Delaney Hall or directly outside of it,” the judges wrote. “Still, the nature of the conduct charged in Count One is nonlegislative.”
Judge Ambro’s dissent was limited to the second count of the indictment, which involved the moments soon after Mr. Baraka was arrested as Ms. McIver tried to re-enter Delaney Hall.
“The Constitution does not permit the executive to wield its considerable discretion over criminal prosecutions in retaliation against disfavored legislators,” Judge Ambro wrote.
“Where, as here, a legislator has presented evidence that her prosecution was brought as an act of political retaliation, I would allow her discovery into the truth of the matter — not only for her own sake but to safeguard the independence of our legislative bodies,” he added.
By: Tracey Tully
Source: The New York Times