Lawyers for U.S. Rep. LaMonica McIver, D-NJ), are asserting that her actions during an anti-Immigration and Customs Enforcement (ICE) protest on May 9, 2025, are protected by free speech and congressional immunity. The defense team presented these arguments in a federal appeals court in Delaware, seeking to dismiss the criminal case against her that could result in up to 17 years in prison.
McIver is accused of assaulting, resisting, and impeding officers outside the Delaney Hall ICE facility in Newark, New Jersey. The incident occurred as Newark Mayor Ras Baraka was attempting to join a congressional oversight visit to the facility. Video footage shows McIver and demonstrators surrounding Baraka, creating a chaotic scene. During the scuffle, McIver allegedly placed her elbow into an officer and pushed, though it remains unclear if the contact was intentional or incidental. She has pleaded not guilty to the charges.
During the appellate court hearing, defense attorney Paul Fishman argued that members of Congress possess a form of immunity akin to that of law enforcement officers, and that McIver's conduct would not have risen to the level of a serious offense. Fishman metaphorically stated that her actions "wouldn't have drawn a flagrant foul in the Knicks-Spurs game," implying the force used was not criminal in nature.
Judges on the three-judge panel expressed some skepticism regarding the defense's reliance on qualified immunity. Judge Stephanos Bibas, a nominee of President Trump, questioned the argument. However, other judges acknowledged the rarity of such charges being brought against a legislator for physical contact during an incident. Judge Thomas Ambro suggested that the Department of Justice might be pursuing the case to publicly embarrass McIver, remarking that the court should consider tossing the case if it appeared the DOJ was trying to "get a pound of flesh."
Judge Cindy Kyounga Chung, a nominee of President Biden, also noted the unusual nature of the prosecution, as most cases involving members of Congress typically pertain to corruption or bribery.
Outside the courthouse, McIver commented on the legal process, stating, "The point of it all is cruelty… the process is the pain for them, and they enjoy that, and they’re watching me, a new member of Congress, go through that."
McIver and her legal team also contend that the prosecution is politically motivated, a claim that has been raised in their arguments before the appeals court.