LaMonica McIver

A panel of appellate judges declined to toss federal charges alleging Rep. LaMonica McIver attacked federal agents outside the Delaney Hall immigrant detention facility last year, stating they had no jurisdiction over whether she should face trial, only its outcome.

In a written opinion by Judge Cindy Chung ― a Biden appointee ― the 3rd Circuit Court of Appeals sided on Aug. 26 with District Judge Jamel Semper's ruling that McIver was not protected by the Constitution's Speech and Debate clause or legislative immunity in an alleged attempt to obstruct the arrest of Newark Mayor Ras Baraka by assaulting immigration enforcement officers at Delaney Hall.

Pushing her way "past and forcibly striking someone are unambiguously non-legislative,” the appellate court ruled in a 2-1 decision. Judge Thomas Ambro wrote a "partial" dissent, finding that while McIver's position in the legislature hardly protects her from allegations she “slammed her forearm” into a Homeland Security investigator and "grabbed" another agent's arm during their arrest of Baraka.

However, constitutional provisions empowering Congress to check the balance of executive power were written "at their core" to protect legislative independence, Ambro stated.

His minority opinion further cautioned McIver should be allowed further review of potential evidence of a politically motivated prosecution, "not only for her own sake but to safeguard the independence of our legislative bodies."

"Today’s decision chills that authority and emboldens the Trump administration to continue persecuting our most vulnerable communities," McIver wrote in a public statement after the order was issued. "We are exploring every possible option. The administration will not stop me from doing my job or standing for what is right. This is not over.”

Paul Fishman, McIver's lead defense counsel, has repeatedly argued Baraka's arrest was merely an effort by the Department of Homeland Security to disrupt, delay or prevent an oversight tour the congresswoman was undertaking to ensure Delaney Hall met National Detention Standards.

If arresting the mayor was nothing more than a pretense to stymie McIver's rightful powers of oversight, then her attempts to question the arrest would therefore be an act of legislative duty, according to Fishman's oral arguments before the appellate panel on June 24.

Semper denied Fishman's arguments because McIver's actions occurred outside the facility's gate, and therefore can be untethered from her legislative oversight of Delaney Hall. However, the appellate court differed in its reasoning.

Although “investigating” the actions of the executive branch could constitute a legislative act, “physical contact” against a Homeland Security investigator is not, the panel found.