- Webmaster
- Visto: 85
McIver, moving to dismiss charges, asks why she’s treated differently from Jan. 6 rioters
Rep. LaMonica McIver (D-Newark), under indictment for allegedly assaulting federal officers during a May 9 visit to an immigrant detention facility, filed a flurry of motions challenging the legitimacy of the government’s case against her late last week, including one that highlights the contrast between her treatment and that of the January 6 rioters whose charges were dismissed by President Donald Trump’s Justice Department.
The first-term congresswoman filed two separate motions to dismiss the charges she faces: one that argues she’s facing selective prosecution on political grounds – differing sharply, it contends, from the current administration’s lenient treatment of those charged with January 6 crimes – and another that argues the charges relate to protected legislative acts she performed as a member of Congress. Allowing the case to continue, McIver’s attorneys wrote, would “deter other Members from conducting legitimate oversight and imperil the separation of powers.”
A third motion argues that critical statements the government has made outside the courtroom unlawfully assume McIver’s guilt and impede her right to a fair trial; she asked the court to order federal officials to stop discussing her case in such ways. And a final, fourth motion accuses prosecutors of failing to hand over all relevant evidence in the case, and asks the judge to order prosecutors to provide further video and documents.
“I have full confidence in the arguments we’re making – the briefs speak for themselves,” McIver said in a brief statement on the filings.
Friday was the deadline for pre-trial motions, according to a schedule established earlier this summer. Prosecutors have until next Monday to respond to McIver’s motions. Oral arguments on the motions are expected on September 9.
The motions were written by two former heavyweights in the U.S. Attorney’s office who are now representing McIver: former U.S. Attorney Paul Fishman, who served during the Obama administration, and former Executive Assistant U.S. Attorney Lee Cortes. The case is being heard by U.S. District Court Judge Jamel Semper, an appointee of President Joe Biden.
Notably, unmentioned in any of the filings is the ongoing uncertainty over whether acting U.S. Attorney Alina Habba has the authority to prosecute McIver or any other defendant in the District of New Jersey. A Pennsylvania judge is likely to issue an opinion this week on whether Habba’s complicated appointment process violated federal law, but McIver’s filings ignore that debate, only mentioning Habba in the context of controversial statements Habba has made about how she’d conduct her duties as U.S. Attorney.
The charges McIver is defending herself against revolve around a chaotic few minutes on May 9, when McIver, two of her Democratic congressional colleagues, and Newark Mayor Ras Baraka arrived at the newly reopened Delaney Hall immigrant detention facility in Newark to conduct an oversight visit, something members of Congress are explicitly allowed to do under federal law.
Baraka, who as a local official does not possess the same oversight authorities, was asked to leave the facility, and he did – but a few minutes later, federal officers came outside the facility’s gates and arrested him anyway for allegedly trespassing. The arrest ignited a scuffle in which McIver and a number of protesters who gathered at the gates shoved federal officers and were shoved in return; no injuries on either side were ever reported.
Ten days later, Habba announced that Baraka’s trespassing charges would be dropped, but that McIver would be charged with assaulting law enforcement officers, a felony. A grand jury returned an indictment on June 10, and a trial date has been set for November 10.
In one of their motions to dismiss filed last Friday, Fishman and Cortes argue that everything about the circumstances of the case – from the chaos caused by Baraka’s arrest, to the timing of the charges against McIver in conjunction with the dismissal of charges against Baraka, to the prejudicial public statements top Trump administration officials have made about McIver in the months since – point towards a prosecution that is more about selectively punishing an opposition-party lawmaker than about securing justice.
“Clearly, the Executive Branch does not like scrutiny of its immigration policies and practices,” they wrote. “But due process does not permit prosecutions as a form of retaliation when such scrutiny lawfully occurs.”
By contrast, they note, the Trump administration has pursued an explicit policy of abandoning prosecutions of those who attacked the U.S. Capitol on January 6, 2021. Some of those who were pardoned or had their cases dismissed by Trump at the beginning of this year had been convicted or accused of assaulting and seriously injuring federal law enforcement officers – conduct far more severe than anything McIver is alleged to have done.
If the Trump administration is intent on prosecuting a congresswoman of the opposite party for less severe conduct than that of protesters aligned with the president’s party, Fishman and Cortes argue, that constitutes evidence of selective and vindictive prosecution.
“To be clear, Congresswoman McIver is not guilty of the charges that the Justice Department has filed,” the motion states. “But even if its leaders think otherwise, they cannot pursue charges against her because she is a Democrat who conducts oversight of Executive Branch immigration policy, while dismissing charges brought under the same statute against those whose views they share and who engaged in conduct far more egregious.”
“The Executive Branch has been clear that it views oversight of its immigration policies as a nuisance to be abated,” it continues. “And it has openly stated that it views this prosecution as part of its project to chill that oversight.”
Beyond the specific irregularities of the government’s case against her, McIver’s attorneys also argue that the charges against her run into another Constitutional roadblock: the protections of official legislative acts enshrined in the Constitution’s Speech and Debate Clause.
The clause essentially asserts that members of Congress cannot be charged with most crimes for conduct related to performing their official congressional duties. And McIver’s visit to Delaney Hall clearly falls into that bucket, Friday’s filing argues; she and Reps. Bonnie Watson Coleman (D-Ewing) and Rob Menendez (D-Jersey City), both of whom do not face any charges, were there for an oversight visit that they are explicitly given the power to conduct as members of Congress.
Moreover, McIver has a history of legislative conduct related to immigration enforcement that long predates her Delaney Hall visit. The congresswoman sits on the House Homeland Security Committee, which has jurisdiction over immigrant detention facilities like Delaney Hall; she had written a letter to Department of Homeland Security (DHS) Secretary Kristi Noem regarding conditions at such facilities; and she, along with Watson Coleman and Menendez, had paid a visit in February to New Jersey’s other detention center, the Elizabeth Contract Detention Facility.
In that context, McIver’s attorneys argue, the charges against her relate unavoidably and exclusively around her official legislative duties, and cannot be allowed to move forward.
“The implications are obvious: putting Congresswoman McIver on trial for exercising her constitutionally and statutorily vested duties in this case would deter other Members from conducting legitimate oversight and imperil the separation of powers,” they wrote. “That sort of intimidation of independent legislative prerogatives is exactly the evil that legislative immunity was designed to prevent.”
Speech and debate clause arguments were also made by the last New Jersey member of Congress to come under federal indictment: former U.S. Senator Bob Menendez, who was ultimately convicted last year in a wide-ranging bribery scheme. Menendez’s attorneys attempted to argue that many of the senator’s actions related to the scheme, which included influencing U.S. Attorney appointments and introducing pro-Qatar Senate resolutions, were protected legislative acts and could not be the subject of prosecution.
Menendez’s case, however, revolved around whether the senator had used his official powers for personal gain for himself and a handful of allied businessmen; the judge ultimately rejected his arguments and allowed the case to go to trial.
In addition to their two efforts to dismiss the case entirely, McIver’s attorneys also filed a motion seeking to prevent the government from continuing to make “extrajudicial statements” about McIver and the charges against her.
The congresswoman’s attorneys wrote that defendants are legally protected from certain government statements. They argue that court rules bar the government from commenting on the character of defendants or witnesses, the nature of evidence in the case, or public opinions on the guilt or innocence of a defendant, and that the presumption of innocence must be included when indictments are discussed.
A footnote in the filing states that McIver may seek to dismiss the charges if the federal government continues to make such “prejudicial statements” or fails to remove prior statements.
“Individually and collectively, those statements are extraordinarily prejudicial: they unequivocally declare Congresswoman McIver’s guilt; they assail the defenses DHS expects her to assert; they demean her as a ‘gutter politician’ responsible for purportedly escalating rates of assault on ICE agents; and they attempt to associate her with ‘Murderers, Rapists, Suspected Terrorists, and Gang Members’ supposedly housed in the detention facility that the Congresswoman inspected on May 9, 2025, as part of her congressionally authorized oversight responsibility,” the motion states.
McIver’s attorneys point to a series of five statements and social media posts by the federal government, particularly by the DHS, in the months following her indictment. In mid-July, for example, the DHS issued a press release claiming that ICE officers are facing an 830% increase in assaults since President Donald Trump’s January inauguration. McIver’s filing called the skyrocketing numbers “phantom statistics” and took issue with the release’s characterization of the Delaney Hall visit; the statement said she had “trespassed on and stormed the Delaney Hall detention facility, where she proceeded to physically assault an ICE officer.”
The congresswoman’s filing states that by this time, Habba’s office had provided the defense with video that proves she did not trespass or storm the facility; the release, it argues, omits McIver’s oversight authority, fails to mention her presumed innocence, and includes an “imaginary claim” that McIver is responsible for an increase in assaults on ICE agents.
“[This] arm of the prosecution team has wielded its unique position of authority to publicly render its own verdict on Congresswoman McIver’s guilt; assail and defame her character and the character of other potential witnesses; advance a manufactured narrative around the evidence upon which the prosecution will rely at trial; and make huge efforts – without any factual basis – to tie the Congresswoman to DHS’s ‘Most Egregious’ detainees, to a purported rise in assaults against ICE agents, and to a series of alleged incidents involving ICE around the country with which the Congresswoman has no connection at all,” McIver’s attorneys wrote.
In a fourth motion, McIver’s attorneys say prosecutors haven’t handed over a collection of evidence and documents they’re obligated to disclose.
Her team says the government has provided footage from two cameras on the exterior of Delaney Hall and footage from eleven body-worn cameras on ICE or Homeland Security Investigations officials. They say the disclosure was “deficient” and that no other material was provided from the May 9th visit.
The congresswoman’s attorneys also say prosecutors have declined to provide other categories of materials, and have asked Judge Semper to order the disclosure of materials like surveillance video of the entire period of her visit to Delaney Hall, internal communications about the incident, and internal policies at play.
According to the motion, prosecutors have already agreed to hand over footage of McIver’s tour of the facility, the identities of officers present at the scuffle, the identities of officers with body-worn cameras, car dashboard footage, and maps and diagrams of Delaney Hall.
McIver’s attorneys say body-camera footage from two officers central to the case – one of whom was an alleged victim of McIver’s assault, and another who allegedly shoved McIver – has not been released to the defense. If body-camera policy was violated, they argue, the government must explain why and how; they also suggest that some of the evidence is in the hands of GEO Group, the private-prison company that operates Delaney Hall.
“Even if GEO Group is not a member of the prosecution team (as the government’s response suggests), it is difficult to believe that the government does not have access to or cannot demand the production of material that is in the custody of the private company that ICE has hired to incarcerate federal detainees,” the motion states. “Surely the government has access to all the surveillance video from Delaney Hall on demand.”
“Finally, because the videos show that the entire episode surrounding Mayor Baraka’s arrest was concocted to interfere with Congresswoman McIver’s right and ability to inspect Delaney Hall, she is entitled to the communications between and among law enforcement personnel regarding the preparations for that spectacularly ill-conceived and badly executed operation,” it continues. “Indeed, it is indicative of the bad faith of ICE and HSI leadership.”
This story was updated at 12:51 p.m. with a correction: McIver’s motion refers to January 6 defendants who had their cases dismissed, not to those who had already been convicted and were then pardoned.
The post McIver, moving to dismiss charges, asks why she’s treated differently from Jan. 6 rioters appeared first on New Jersey Globe.
