LaMonica McIver

Two separate briefs have been filed. One was by the ACLU of New Jersey, the National Women's Law Center and the NAACP, the other by 20 former Congress members.

Two groups, including a bipartisan coalition of former U.S. lawmakers, have urged the 3rd U.S. Circuit Court of Appeals to dismiss the Justice Department's allegations that Rep. LaMonica McIver assaulted federal agents outside the Delaney Hall immigrant detention center last year.

The calls to reverse a lower-court ruling in November that upheld the Justice Department's charges were filed back-to-back in the form of "amicus briefs," which permit uninvolved parties to file arguments in a court case, provided they have an interest in its outcome.

On April 6, the ACLU of New Jersey, the National Women's Law Center and the NAACP filed a joint brief seeking to overturn the rulings of U.S. District Judge Jamel Semper, who denied McIver's requests to dismiss her case on the grounds of legislative immunity and claims that she had been unfairly targeted based on her progressive politics.

“This is the prototypical case of the executive branch seeking to punish a legislator for her speech” and “opposition to executive action,” the ACLU said in its brief, which uses arguments similar to those of McIver's attorney, Paul Fishman, when he testified before Semper in October.

Semper's Nov. 13 ruling rejected Fishman's arguments on the grounds of legislative immunity, finding that the protections extended to members of Congress under the U.S. Constitution's "speech and debate" clause did not apply to McIver's involvement in a May 9 scuffle outside the detention facility when agents arrested Newark Mayor Ras Baraka.

That provision extends only to her presence at Delaney Hall for the purposes of touring the facility to ensure that it was in compliance with Immigration and Customs Enforcement's National Detention Standards, Semper ruled.

Her decision to come to Baraka's aid, as agents carried out a chaotic arrest that roiled a mass of protesters at the scene, was a separate action with no bearing on her intention to oversee conditions inside the jail, the judge said.

A month later, McIver's attorneys filed a notice to appeal Semper's decision. That request remained pending as the unaffiliated groups submitted their arguments in support of quashing the indictment.

While the ACLU's brief reinforces Fishman's arguments that the U.S. Supreme Court has consistently found that the "speech and debate" clause can be interpreted "broadly" to protect Congress' checks against executive power, a second brief submitted by 20 former members of Congress ― all but three of whom served as Republicans ― paints McIver's involvement in the fracas as just that: a legislator's attempt to oversee the actions of an executive agency run amok.

“Congress’ oversight function does not begin and end at the exterior of such facilities,” the former lawmakers argue in their brief. The charges of Congress extend to any location where the official conduct of federal agents "violates the law or seeks to intimidate citizens or other public officials from exercising their constitutional rights," the filing says.

Such actions are “obviously” subject to McIver's oversight when they occur in the congressional district she represents, the coalition says.

The center of a fracas

The underlying event occurred on May 9, when McIver was onsite with Democratic Reps. Rob Menendez and Bonnie Watson Coleman for an unannounced tour of Delaney Hall ― a right afforded to them under Congress' 2020 spending bill.

Baraka, who suspected that the facility had been operating without city permits, visited the site while McIver and her delegation awaited their tour. Security staff invited the mayor to await the lawmakers' return inside the front gates, said court documents filed by McIver's attorneys, all while a mass of protesters loudly challenged the alleged inhumane treatment of migrants housed inside.

After he waited inside the facility's fence, federal agents ordered Baraka to leave, only to descend on him for alleged trespassing once he exited the secure grounds, documents say. As the delegation hurried outside to investigate the fracas, a scrum of protesters pressed forward, as seen in video footage of the event.

McIver and Watson Coleman tried to shield Baraka from the arresting agents, to no avail. As he was pulled back inside the gate, many at the center of the tumult were knocked back and forth in the restive crowd. Footage shows McIver still grabbing after the mayor and swatting her hand at one of the agents, then swinging her elbows wildly in the chaos, making contact with another officer directly behind her before Menendez pulls her from the fray.

Whether she intentionally shoved the agents or simply tried to gain her footing as the mass of people moved toward the gate is unclear. The indictment says McIver "slammed her forearm" into one of the agents, then "forcefully grabbed" him in an attempt to "thwart" the arrest.

Conversely, the brief filed by former members of Congress describes the alleged assault as “fleeting physical contact” due to “chaotic circumstances" created by the agents' unlawful arrest of the mayor.

Alina Habba, whom Trump had temporarily appointed U.S. attorney for the District of New Jersey at the time, later dropped the trespassing charge against Baraka but quickly sought an indictment against McIver on allegations she assaulted, resisted or impeded federal officers during Baraka's apprehension.

Although Habba resigned in December after a panel of judges ruled she had violated federal law by holding office without Senate approval, the scandal has not affected the charges against McIver, which Habba filed within the three-month period her appointment remained in effect.

Chilling effect

Throughout their brief, the former members of Congress repeatedly warn the court that permitting the case to proceed would embolden an administration already marked by its unbridled lawlessness.

Left unchecked, the White House will continue to hold a “dangerous and unconstitutional leverage over Congress" and in so doing will forever erase the ballast the branches provide, the ex-lawmakers say.

“This case will provide a roadmap for [federal agents] to obstruct and deter legitimate oversight," the filing says. Whenever challenged, executive agencies will know any hapless move amid a manifested frenzy can represent an indictable offense, it says.

Former members of Congress

According to the court documents, the former members of Congress who supported the brief were: