The Trump administration is facing high stakes as it brings charges against Rep. LaMonica McIver (D-N.J.) — a test of the administration as it eyes additional prosecutions against other lawmakers.
The case is the first brought against a sitting lawmaker under the Trump administration, one Democrats argue amounts to an effort to intimidate the political opposition.
Alina Habba, a former personal attorney to President Trump now serving as interim U.S. attorney for New Jersey, has accused McIver of assaulting law enforcement with her forearms during a chaotic clash that ensued after U.S. Immigration and Customs Enforcement (ICE) officers began to arrest Newark, N.J., Mayor Ras Baraka (D).
Habba has since pushed to meet with two other New Jersey Democrats present that day — Reps. Rob Menendez and Bonnie Watson Coleman — raising questions over whether additional charges may be coming.
The rising tensions over the case complicate efforts to present it as a straightforward assault charge.
Rep. Dan Goldman (D-N.Y.), a former federal prosecutor in the Southern District of New York, described the first document filed in the case as highly flawed.
“It’s one of the most embarrassing publicly filed charging documents from a U.S. attorney’s office that I’ve ever seen,” Goldman told The Hill.
“When you then compare the written allegations to the photos that are included, it’s clear the written allegations do not accurately reflect what the photos show. Then, when you look at the video, it’s even less accurate, and it is because it’s so weak and thin, it is so clear that it is a purely political charge.”
There are signs McIver’s case will get significant scrutiny.
A judge blasted the Justice Department as it moved to dismiss the initial trespassing charges brought against Baraka, who had tried to join congressional Democrats on the tour of Delaney Hall detention center.
U.S. District Judge Andre Espinosa said in a Wednesday hearing the arrest suggested a “worrisome misstep” by the New Jersey’s U.S. attorney’s office, noting the “apparent rush” in bringing the case that culminated in the government’s “embarrassing” retraction of the charge.
“Your role is not to secure convictions at all costs, nor to satisfy public clamor, nor to advance political agendas,” Espinosa said to the government’s lawyer. “Your allegiance is to the impartial application of the law, to the pursuit of truth and to the upholding of due process for all.”
McIver’s case is in its earliest stages. Prosecutors have only filed a complaint, meaning it still will have to get the blessing of a grand jury in order to proceed.
Body camera footage is sure to play a significant role in the case.
Prosecutors allege McIver yelled “hell no” when ICE agents began to arrest Baraka, saying she and others encircled Baraka to prevent his arrest.
The document says she “used each of her forearms to forcibly strike” ICE officers.
But available footage shows a more complex picture, one where a cluster of figures is all being jostled amid the chaos.
“It is so clear that there’s no intent to inflict any physical harm or do anything with the necessary criminal intent. She’s in a scrum and is just trying to protect herself. And even if she did use her forearm to push an agent as part of a scrum, it would never, ever be charged against an average bystander, and certainly not against an elected official who has a constitutional right to be there,” Goldman said.
“She’s absolutely getting squished. She’s being pushed from behind. She’s trying to brace herself. It’s all garbage.”
Menendez said the Department of Homeland Security (DHS) has yet to release all body camera footage from the incident, something he said would raise further questions about “how Bonnie and LaMonica were treated that day.” But he also noted McIver wasn’t even referenced in the DHS’s initial press release on the matter.
“The day of, DHS puts out a statement. They say two members of Congress were there: Bonnie Watson Coleman and Rob Menendez,” he recounted. “So in their haste to spin this, they got the facts wrong, including who’s there, and the person that they didn’t identify as having been there is the one they’re now bringing charges against.”
He noted the lawmakers still went on a tour of the facility after the episode.
“If you would witness an assault of an officer, you would not bring a group of people in to do a tour for 45 minutes,” Menendez added.
Menendez said he does not know if, as with McIver, Habba will attempt to offer him a plea deal.
McIver rejected such a deal, telling CNN earlier this week Habba wanted her to “admit to doing something that I did not do.”
Goldman identified other issues with the complaint — including that the declaration was prepared by an officer of the same agency as the one allegedly assaulted, Homeland Security Investigations.
“You would never have the same law enforcement agency investigating a case where a colleague is ostensibly the victim. You’d always have them recused, and you’d have a different agency do it because of the obvious bias and conflict of interest,” he said.
The case could also unlock complex questions about the extent lawmakers are protected by the Speech and Debate Clause.
“We have explicit textual protection for our work as members. The president doesn’t have that, and the Supreme Court nonetheless found that he was absolutely protected within the core functions of his office. We have got to be protected in the core functions of our office, which includes oversight,” said Rep. Jamie Raskin (D-Md.), the top Democrat on the House Judiciary Committee.
“There’s no legislative capacity without real oversight. So yes, I think the Speech and Debate Clause is essential to understanding what’s going on.”
But Jessica Levinson, a constitutional law professor at Loyola Law School, said the protections do have limits.
“The Speech and Debate Clause is quite broad in many ways, in the sense that the purpose behind it is to preserve the integrity of the legislative branch and is to act as a bulwark against the executive or judicial branches trying to go after lawmakers for doing their jobs,” she said.
“I think there would be immunity under the Speech and Debate Clause if what we say is, ‘McIver was exercising her oversight authority and trying to enter an ICE facility.’ There would not be immunity under the Speech and Debate Clause if she is assaulting federal law enforcement officers in her attempt to enter an ICE facility,” Levinson said.
“So does she have the legal right to be there and to enter and exercise legislative oversight? Absolutely. Does she have the right to engage in assault and then try and wrap the Speech and Debate Clause around her as a protective barrier? I think the answer is no.”
The charges against McIver are also the first since the Justice Department said it was considering allowing attorneys to bypass the Public Integrity Section, which otherwise consults on all pending cases against elected officials to make sure they are not tainted by politics.
“I think there’s some there’s some serious questions related to the administration’s apparent decision to bypass the Public Integrity Section because the Public Integrity Section and the Speech and Debate Clause at bottom are kind of designed to do the same thing, which is to protect sitting lawmakers from being on the receiving end of a politically charged federal complaint,” Levinson said.
“It’s an escalation on the part of the Department of Justice using its power to go after those who may be seen as political opponents, and there’s typically been enormous reticence to do so.”