Before Rep. LaMonica McIver
(D-Newark)’s trial on federal assault charges begins in November, a
federal judge will hear oral arguments on whether the charges
should be thrown out without going to trial at all.
According to recent legal
filings, District Judge Jamel Semper has scheduled oral arguments
for October 21 to hear out a series of pretrial
motions made by McIver’s
legal team. (That contrasts with how a different judge handled
ex-Senator Bob Menendez’s case last year; Menendez also filed
several pre-trial motions to dismiss, including one relying on
arguments similar to McIver’s, but the judge rejected them without ever hearing in-person
testimony.)
McIver was charged in
May with allegedly
assaulting federal immigration officers while conducting an
oversight visit at Newark’s Delaney Hall immigrant detention
center. The first-term congresswoman has said the charges are an
attempt at political intimidation, and her legal team filed two
motions to dismiss the charges in August: one focusing on McIver’s
legislative immunity under the Constitution’s Speech or Debate
Clause, and another arguing that the charges are vindictive and
politically motivated.
In its
response last week, the
Department of Justice (DOJ) said that its prosecution of McIver –
led by acting U.S. Attorney Alina Habba, whose own authority is
under scrutiny in an appeals court – is valid
and should be allowed to stay on track. Last night, McIver’s team
filed its rebuttal to that response, in what may be the case’s
final major briefs before October oral arguments.
The four reply briefs filed last
night make few new arguments, but some do shed new light on how
McIver intends to push back on the government’s characterization of
her actions at Delaney Hall, when she scuffled with officers
following their arrest of Newark Mayor Ras Baraka.
Read the four reply briefs: on vindictive prosecution, on legislative immunity, on extrajudicial statements, and on compelling discovery
McIver’s attorneys said in their
August motion that, since the congresswoman’s visit to Delaney Hall
was official congressional business, she is protected by the
Constitution’s guarantee of legislative immunity for official acts;
the DOJ responded that the nature of the visit is irrelevant to the
alleged assault McIver committed. In their new brief filed
yesterday, McIver’s team argues the opposite: scuffling with
immigration officials was official business, because it was done with the
intention of protecting her right to conduct oversight.
“[McIver’s] conduct during Mayor
Baraka’s arrest itself served the legislative function of
preventing impairment of her oversight inspection and overseeing
ICE’s unsafe and unlawful arrest of the Mayor,” the reply states.
“The Congresswoman’s actions were a spontaneous and proportional
response to a volatile situation that ICE itself created, and any
Member of Congress could find themselves in similar circumstances
while conducting oversight of ICE facilities.”
McIver’s attorneys had also
filed two other motions last month: one that seeks to restrain the
government from making “extrajudicial statements” about McIver that
may prejudice the jury, and another to compel discovery on a number
of pieces of potentially key evidence.
The DOJ said in its response
that, while it disagrees with McIver’s characterization of
“extrajudicial statements” made by the Department of Homeland
Security (DHS) and by President Donald Trump himself, it had asked
DHS officials to take down five specifically offending statements.
Those five statements have indeed since been removed, but McIver’s lawyers said
that’s not a sufficient remedy, and that the Trump administration
must proactively identify and retract any other prejudicial
remarks.
“A criminal prosecution is not a
game of whack-a-mole that requires a defendant to police the
conduct of the prosecution team and other Executive Branch
personnel to receive a fair trial,” the reply states. “To the
contrary, that responsibility falls in the first instance on the
prosecution team, and the Court should direct them to search for,
identify, and disclose any other instances in which such statements
have been published.”
The two sides also remain at
odds on the issue of body camera footage. The DOJ stated last week
that footage from some officials present at the incident –
including those identified as Victim-1 and Victim-2 – is not
available because those individuals were not wearing body cameras
for a variety of reasons; McIver’s attorneys expressed skepticism
of those claims, and have asked for more details about the reasons
for the lack of footage.
Oral arguments in October may provide more clarity about how
Semper is approaching the case, but it’s possible that outside
factors will complicate his timeline. A federal government funding
deadline is approaching on September 30, and if the government
shuts down for an extended period of time, the federal judiciary
could be affected; the ongoing Third Circuit
appeal over Habba’s legitimacy has also cast a shadow over the
entire New Jersey judicial system, with many cases being put on pause until her authority is
either affirmed or nullified.
The post Judge will hear Oct. 21 oral arguments on whether
McIver charges should be tossed appeared first on New
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Later,
Ruppert said she stood by her post but refused to debate on
Facebook.