The Third Circuit Court of Appeals declined to dismiss the criminal charges against Rep. LaMonica McIver (D-N.J.) in the fallout over her oversight visit to an immigration detention facility in Newark.
By a 2-1 margin, the appellate court threw out the bulk of McIver’s claims of legislative immunity and found that it lacked jurisdiction to consider whether she had been vindictively prosecuted.
“To protect the people, their elected representatives must be authorized to conduct oversight of the executive branch without fear of retaliation,” McIver said in a statement. “Today’s decision chills that authority and 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. I will not fold to this administration.”
‘The Constitutional foundation of our government’
In May of last year, McIver joined a congressional delegation to oversee the Delaney Hall immigration detention center in Newark. After the lawmakers arrived, federal agents tried to arrest Mayor Ras Baraka, and McIver tried to intervene by allegedly grabbing one of the agents.
The government’s trespassing case against Baraka ultimately collapsed before trial, but McIver’s federal assault case remains pending.
The New Jersey congresswoman unsuccessfully tried to dismiss her case for selective and vindictive prosecution and lost a related motion claiming that her indictment was barred by the Constitution’s Speech or Debate Clause. She appealed that decision to the Third Circuit, where a panel initially appeared to be sympathetic to her case.
On Wednesday, the Third Circuit’s majority mostly ruled against her, finding that she couldn’t appeal the denial of her vindictive prosecution motion before trial.
U.S. Circuit Judge Thomas Ambro, a Bill Clinton appointee, believed that was a mistake.
“Potentially retaliatory prosecutions of sitting Members of Congress are exceedingly rare,” Ambro wrote in a partial dissent. “But when they do occur, the constitutional foundation of our government is at risk.”
Ambro believed that cases of such “exceptional importance and rarity” allow the appellate court to exercise jurisdiction, but he was ultimately outvoted.
“Real harm results from that choice,” he wrote.
U.S. Circuit Judge Cindy Chung, a Joe Biden appointee, wrote the majority opinion and didn’t opine on whether the Trump administration targeted McIver because of her oversight of Delaney Hall, where at least three detained immigrants have died within eight months.
Along with Trump-appointed Judge Stephanos Bibas, Chung found that any appeal would have to wait until after McIver’s trial, but the majority judges found that one of her three charges might be barred under the Constitution’s Speech or Debate Clause. They ordered the trial judge to reconsider whether that final count can survive.
‘Disfavored legislators’
Due to give birth to her second child this autumn, Rep. McIver may be running out of options to avert a trial, and her attorney Paul Fishman has argued that the criminal process itself has a chilling effect regardless of its outcome.
“As we argued before the court, 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,” Fishman said. “The goal of the administration is clear: chill members of Congress from overseeing the actions of the Trump administration. As Judge Ambro noted in his dissenting opinion, ‘the Constitution does not permit the Executive to wield its considerable discretion over criminal prosecutions in retaliation against disfavored legislators.’ We agree and are evaluating all possible next steps.”
If convicted of all counts, McIver faces a maximum penalty of 17 years imprisonment, and her defense contrasted her assault charges with the wholesale pardons of violent Jan. 6th rioters, who were convicted under the same statute.
Ambro found the comparison to be apt.
“When assessed against legitimate factors, [the rioters] were far more culpable than she is: many of them were armed, and she was not; they were unlawfully present, and she was not; many of them had criminal records, and she did not; many of them caused injuries, and she did not,” he said.
Trump’s Department of Homeland Security launched a pre-trial media blitz against the congresswoman, accusing her of having “stormed the gate” of Delaney Hall in a “bizarre political stunt.”
The government was forced to delete those posts, but McIver wasn’t able to persuade a judge to investigate what role the agency played in her prosecution.
Read the ruling in full here.
Adam, as disturbing this Rep. LaMonica McIver case is, I thank you for keeping it where we can know how it is being tried. I only wish we had another judge like Judge Thomas Ambro, to have a say. Please keep us posted.
Chilling.