Rep. McIver Moves to Dismiss Federal Charges Against Her, Citing Trump’s Jan. 6 Pardons
Rep. LaMonica McIver (D-N.J.) is moving to dismiss the federal charges against her by invoking President Donald Trump’s mass pardons for those who attacked the Capitol in his name on Jan. 6, 2021.
A grand jury indicted McIver in June on a three-count charge of “forcibly impeding” officers during a chaotic confrontation between federal agents and elected officials outside an Immigration and Customs Enforcement (ICE) facility in Newark earlier this year. The charge is a felony, and the three counts carry a maximum sentence of 17 years in prison.
McIver, the first sitting member of Congress to be criminally prosecuted by the Trump administration, pleaded not guilty.
In new filings late last week, McIver asked a court to dismiss the charge because, she argues, she is being selectively and vindictively prosecuted by the government and because she cannot be charged for official acts.
McIver said that the DOJ is demonstrating “unconstitutional differential treatment” by pursuing charges against her after dropping cases against over 160 other defendants facing the same crime for their actions during the Jan. 6 attack.
“There is a simple difference between this prosecution of Congresswoman McIver and the 160 cases involving assault against federal officers on January 6 that the Justice Department has dismissed: it is all about politics and partisanship,” one of her dismissal motions reads.
In the filing, McIver noted numerous instances of Trump administration officials speaking fondly of Jan. 6 Capitol rioters and contrasted those statements with how Trump officials have characterized McIver’s actions.
DHS officials have asserted that her attempt to tour Delaney Hall, the ICE facility, was “just another case of Democratic lawmakers labeling political stunts as oversight while they endanger the safety of ICE personnel.” Trump himself praised the DOJ for bringing charges against McIver, claiming that it indicated that the “the days of woke are over.”
“Unlike the January 6 rioters, Congresswoman McIver had every right to be on those premises. Indeed, she was there to do her job,” the dismissal motion reads.
In a separate motion, McIver said the charges must also be dropped because she could not be charged for expressing her constitutional authority to conduct oversight on the executive branch.
In doing so, the representative cited the Speech and Debate Clause, which shields lawmakers from legal proceedings for their legislative acts, and the absolute immunity the Supreme Court granted to presidents for their official acts in U.S. v. Trump.
Since the president has immunity for official acts, the “separation of powers accordingly confers an immunity on the official acts of legislators symmetrical with the immunity for the President’s official acts,” McIver’s lawyers argued.
“Congresswoman McIver’s conduct here undoubtedly consisted of official acts entitled to presumptive immunity, which the Government cannot rebut,” McIver’s second dismissal motion reads.
McIver attempted to tour Delaney Hall as part of a congressional delegation with her fellow New Jersey Democratic members of Congress, Reps. Bonnie Watson Coleman and Rob Menendez.
Federal law allows members of Congress to conduct oversight on any facility operated by the Department of Homeland Security and its sub-agencies, including ICE. McIver, Watson Coleman and Menendez repeatedly described the visit, in advance, as congressional oversight inspection.
However, the oversight visit erupted into chaos after federal agents attempted to arrest Newark Mayor Ras Baraka (D) for allegedly trespassing while the lawmakers were inside the facility. (The trespassing charges against Baraka have been dismissed and the mayor is suing over his arrest.)
Though not a member of Congress, Baraka attempted to join McIver and the other lawmakers on their oversight tour. 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.
In the footage, Ricky Patel, a DHS investigations official who coordinated Baraka’s arrest, is heard saying: “I am arresting the mayor . . . even though he stepped out, I am going to put him in cuffs . . . per the Deputy Attorney General of the United States.”’
McIver’s attorneys alleged that DHS agents and senior DOJ officials “concocted a scheme to arrest the Mayor of Newark on fabricated, petty-misdemeanor trespassing charges that further delayed the Members’ inspection.”
The contact she made with officers did not amount to assault but was largely the result of a “torrent of jostling” throughout a chaotic scrum that developed as federal agents were attempting to arrest Baraka, her lawyers argued. They noted that during the scrum, a federal agent “forcefully” shoved McIver.
“The agent’s use of force against Congresswoman McIver as she was reentering the facility was so egregious that—unlike the officers responding to the Congresswoman’s actions—she immediately informed an ICE official that she intended to file a complaint.”
In addition to the two motions to dismiss, McIver filed a motion to obtain body camera footage from the officer who shoved her and the officer she allegedly assaulted — two pieces of evidence that the government refused to provide in her initial discovery request.
McIver’s attorneys also asked a court to order the Trump administration to delete several social media posts that contain extrajudicial statements that, they argue, harm her ability to have a fair trial.
A judge set a tentative trial date for Nov. 10.
Watch Democracy Docket Founder Marc Elias’ Interview With Rep. McIver