Democratic Congresswoman, LaMonica McIver, Charged With Assault by Trump DOJ, Readies Appeal That Could Reach Supreme Court

Congresswoman LaMonica McIver’s appeal to dismiss the criminal charges levied against her by federal prosecutors in New Jersey could mature into a Supreme Court clash — and a referendum on the disqualified United States attorney, Alina Habba, who charged her. Ms. McIver gave notice of her appellate intentions last week. Ms. McIver, a Democrat who has served the Garden State since 2024, faces felony counts of assaulting, resisting, impeding, or interfering with federal officers following a protest in May at an ICE facility. She faces 17 years in prison if convicted on all counts. Another Democrat, who like Ms. McIver is black, Mayor Ras Baraka of Newark, was also arrested at the same incident but the charges against him were dropped.The complaint against Ms. McIver alleges that she slammed a federal agent with her forearm, “forcibly” grabbing him and using her forearms to strike another agent. When ordered to leave she allegedly yelled “Hell, no! Hell, no!” The entire incident was captured on video, which clearly shows Ms. McIver as an active participant in the modest melee. Whether she is “assaulting” federal agents in a “forcible” manner remains open to interpretation — the video is something of a Rorschach test that has become customary in these kinds of politically polarizing incidents.The prosecution of Ms. McIver has enraged establishment Democrats. Two black women Democratic members of Congress – Ms. McIver and Rep. Sheila Cherfilus-McCormick – are both being prosecuted by the Trump Justice Department.The prosecutor, Ms. Habba, who approved the criminal cases against the high-profile black Democrats, has had her own travails. In August Judge Matthew Brann, a Republican appointed by President Obama, ruled that due to a “novel series of legal and personnel moves” she was unlawfully appointed on a temporary basis by Attorney General Pam Bondi. That ruling has twice been affirmed by the Third United States Appeals Circuit. Judge Brann’s ruling that Ms. Habba “is not currently qualified to exercise the functions and duties of the office in an acting capacity, she must be disqualified from participating in any ongoing cases” is downstream from her inability to secure confirmation by the Senate, the constitutionally-mandated path for permanent appointment. One of the Third Circuit jurists declared that “this is about the separation of powers, this is about an important position within the firmament of our government.” Ms. Habba’s path to a vote was blocked by the Senate custom known as “blue slips,” whereby the assent of both of a state’s senators are required for a nominee for United States attorney to proceed to a vote. The Garden State’s two Democratic senators, Andy Kim and Cory Booker, refused to grant Ms. Habba that courtesy — partially due to, it appears, the prosecution of Ms. McIver. Messrs. Kim and Booker have both denounced the case.While Judge Brann ruled that Ms. Habba held her position unlawfully, he did not dismiss the charges brought under her aegis. That more dramatic remedy was prescribed in Virginia, where another one of Mr. Trump’s handpicked prosecutors, Lindsey Halligan, was ejected from her role. The charges against the former FBI director, James Comey, and New York’s attorney general, Letitia James, were also casualties of that ruling.But unlike Mr. Comey and Ms. James, Ms. McIver has not been able to rely on judges to throw out the charges. If Ms. McIver is to have her case dismissed, she will have to do it on her own. Her initial effort to do just that failed when the presiding trial judge, Jamal Semper, an appointee of President Biden, rejected her argument that the charges were precluded by the immunity provided by the Constitution’s Speech or Debate immunity. That clause ordains that lawmakers “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” The Supreme Court has held that the Speech or Debate Clause applies when lawmakers are engaged in “legislative activities.” The Third Circuit, to which Ms. McIver has appealed in an effort to dismiss the case, has ruled that courts must “consider the content, purpose, and motive of the act to assess its legislative or non-legislative character” in order to determine whether the privilege applies. If it does, the protection serves as an absolute bar to arrest and prosecution.Judge Semper ruled that while Ms. McIver’s visit to the ICE facility was “ambiguously” legislative in nature — under the guise of conducting “oversight” — video footage shows that in her subsequent interaction with law enforcement officials she “was not engaging in cognizable legislative activity.” He writes that “the physical contact she engaged in outside the facility lacked a legislative prerogative.” Meaning that the actions for which she is charged were “disconnected” from any legislative purpose.Judge Semper’s denial of Speech or Debate immunity to Ms. McIver is subject to “interlocutory appeal” — meaning that it can be appealed to the Third Circuit before a final verdict is brought in. Usually, only final orders are appealable. Ms. McIver’s appeal will be heard by the Third Circuit — it is likely that whichever side loses will eventually ask the Supreme Court to decide the underlying constitutional immunity issue.Ms. McIver declared in a statement after filing her notice of appeal that “Legislative immunity doesn’t put members of Congress above the law, it protects the public’s right to have a voice — especially when that voice challenges power. What happens here matters far beyond what happens in this one case. So I can’t, and won’t, back down — that’s what this appeal is about.”

Democratic Congresswoman, LaMonica McIver, Charged With Assault by Trump DOJ, Readies Appeal That Could Reach Supreme Court

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