Judge Denies Rep. McIver’s Bid to Dismiss Federal Charges Against Her

A federal judge Thursday ruled that two of three criminal charges against Rep. LaMonica McIver (D-N.J.) can proceed.

McIver, the first sitting member of Congress to be criminally prosecuted by the Department of Justice (DOJ) during President Donald Trump’s second term, faces a three-count charge of forcibly impeding officers stemming from a chaotic confrontation between federal agents and elected officials outside an Immigration and Customs Enforcement (ICE) facility in Newark in May.

McIver pleaded not guilty to the charges. If convicted, she could face a maximum sentence of 17 years in prison.

This fall, McIver asked District Court Judge Jamel Semper to dismiss the charges, alleging the DOJ was selectively and vindictively prosecuting her. She also argued that she was investigating conditions at the ICE facility and could not be charged for expressing her constitutional authority to conduct oversight on the executive branch.

As part of her selective and vindictive prosecution claim, she cited Trump’s mass pardons for those who attacked the Capitol in his name on Jan. 6, 2021. Many Jan. 6 defendants were charged or convicted of the same crime that McIver faces before they were pardoned by Trump.

Thursday, Semper in a 41-page decision rejected most of McIver’s dismissal motions, saying legislative immunity under the Speech or Debate Clause did not protect her from two of the three counts against her. Semper withheld judgement on the third charge, saying he needed more evidence.  

“Impeding an arrest, whether lawful or unlawful, goes beyond any reasonable definition of oversight and, accordingly, exceeds the safe harbor of legislative immunity,” Semper wrote. 

“I am disappointed in today’s decision,” McIver said in a statement Thursday. “From the beginning, this case has been about trying to intimidate me, stop me from doing oversight, and keep me from doing my job. It will not work.”

“I will keep standing up to protect people, and the court’s denial of my motions does not change that fact,” the representative added. “I am not in this fight only for myself, and I am concerned that this decision will simply embolden the administration. This case is not over. I am committed to protecting my community, our people, and our country.”

Federal prosecutors alleged that McIver assaulted federal agents with her forearm as they moved to arrest Newark Mayor Ras Baraka (D) for allegedly trespassing. (The trespassing charges against Baraka were dismissed and the mayor is suing over his arrest.)

McIver has said she was reacting to Ras Baraka’s arrest, which she considered unlawful and the result of a “scheme” between senior DOJ leaders and Trump administration officials.

Though not a member of Congress, Baraka attempted to join McIver and the lawmakers on their congressional oversight tour of the Newark ICE facility. Federal agents initially permitted him to enter the facility but then arrested him after he left the facility in response to orders to do so.

Body-camera footage from federal agents that McIver’s team received in discovery indicated that Deputy Attorney General Todd Blanche, the No. 2 official at the DOJ, personally directed Baraka’s arrest.

Last week, Blanche informed Semper in a letter that the Department of Homeland Security deleted a series of statements against McIver that the judge found prejudicial against her, including a press release falsely accusing her of domestic terrorism.

Given Semper’s outstanding judgement on the third count against McIver, it’s unclear when the trial over the charges will start. The trial was set to begin Monday, but Semper indefinitely delayed it to resolve pre-trial motions.

Separately, the Third Circuit Court of Appeals has yet to rule on whether Alina Habba, one of Trump’s former personal attorneys who has led the prosecution against McIver, can continue serving as New Jersey’s top federal prosecutor.

A federal judge determined in August that Habba had been unlawfully serving as the U.S. Attorney for the District of New Jersey since July, though the ruling was stayed pending appeal.