by Sophie Nieto-Munoz, New Jersey Monitor
A federal judge ruled Thursday that two of the three assault charges against Rep. LaMonica McIver can proceed, largely rejecting the first-term Democrat’s bids to dismiss the charges and paving the way for the case to go to trial.
U.S. District Court Judge Jamel K. Semper, in a 41-page ruling, dismissed McIver’s claims that she is the victim of selective prosecution and that most of the charges she faces are barred by legislative immunity. Prosecutors allege McIver assaulted federal agents on May 9 at the Delaney Hall migrant jail in Newark as the agents moved to arrest Newark Mayor Ras Baraka.
“Defendant has not met her burden of establishing that her predominant purpose in physically opposing the Mayor’s arrest was to conduct oversight or gather information for a legislative purpose. No genuine legislative purpose was advanced by Defendant’s alleged conduct,” Semper wrote.
It’s unclear when McIver’s trial will begin. It had been scheduled to start Monday, but Semper delayed it pending Thursday’s ruling. Semper said he needs more facts to decide McIver’s motion to dismiss the third charge.
McIver has pleaded not guilty and maintained that the charges amount to political retaliation on behalf of the Trump administration.
McIver attorney Paul J. Fishman, a former U.S. attorney for New Jersey, said her legal team is “evaluating next steps.”
“Although it is apparent that the court gave the motions thoughtful consideration, we believe the decisions are wrong. It is clear this administration is treating Congresswoman McIver’s actions differently than the actions of those who are on their side. It is also clear that this prosecution is designed to chill the Congresswoman’s lawful authority to conduct oversight and hold the administration to account,” Fishman said.
McIver’s charges have made her somewhat of a celebrity among Trump critics, who have denounced his administration for going after his political enemies. Progressive House members like Rep. Ilhan Omar from Minnesota and Rep. Jasmine Crockett of Texas appeared at a rally in support of McIver last month outside a federal courthouse in Newark.
A former councilwoman in Newark, McIver ascended to the House of Representatives last year after winning elections to succeed the late Donald Payne Jr. Since she was indicted last spring, she has vowed not to be intimidated by the Trump administration.
“It’s clear why this is happening. It’s because I was doing my job and I will continue to do so. I’m not going to stop holding this administration accountable,” McIver said after a court hearing last month.
Federal prosecutors did not charge McIver for her actions on May 9 until roughly 10 days later, at the same time they announced they would drop the charge against Baraka. They accuse McIver of grabbing and pushing agents as they arrested Baraka for trespassing, an episode caught on multiple cameras worn by the agents and taken by bystanders who witnessed the chaotic scene.
McIver’s lawyers have made two chief arguments to Semper. They say her actions that day constituted legislative acts that cannot be prosecuted because of the Constitution’s speech or debate clause, which is intended to protect federal lawmakers from criminal prosecutions or civil lawsuits related to their legislative work. And they say the charges should be thrown out because they represent selective prosecution.
But Semper’s ruling says McIver’s intervention in Baraka’s arrest had “no cognizable connection” to any action protected by the speech or debate clause.
McIver had been in a Delaney Hall vestibule waiting to inspect the facility as agents prepared to arrest Baraka. She left the waiting room to go to the jail’s parking lot, where she then joined others protesting the arrest. McIver’s attorneys have argued that she was doubling down on her oversight during this time, but Semper rejected that argument, noting that McIver’s tour of the facility occurred after Baraka’s arrest.
“The Government has charged Defendant for conduct that took place during a brief time frame before the oversight inspection began, not on the facility’s premises but in the public parking lot outside the Security Gate. The Court cannot find that the charged conduct was manifestly legislative,” he wrote.
Semper was equally dismissive of McIver’s arguments that she is the victim of selective, vindictive prosecution.
McIver cited the Jan. 6, 2021, riot at the U.S. Capitol as evidence of selective prosecution. But Semper agreed with prosecutors that her case cannot be compared to the cases of Jan. 6 rioters, because many of them were indeed prosecuted before President Donald Trump later pardoned them.
McIver’s arguments that her prosecution is vindictive also fail, Semper ruled, because her examples of comments Trump and acting U.S. Attorney Alina Habba have made about the Democratic Party are not specifically about McIver.
“These broad statements are not specific to this Defendant or responsive to her policy positions on immigration, and are therefore not personalized in a way that the requested relief contemplates,” he wrote.