How the Indictment Against Rep. LaMonica McIver Could Flop

Politico

a day ago

The indictment of Rep. LaMonica McIver on Tuesday marks the latest dramatic escalation in the Trump administration's effort to quell public and political opposition to the president's crackdown on illegal immigration.
It's also likely to be a dud.
The decision to proceed with an indictment following the initial charges against the New Jersey Democrat comes at a politically volatile moment — following President Donald Trump's decision to deploy the National Guard and the Marines in response to protests in Los Angeles, and in the midst of ongoing wrangling over the scope and legality of the administration's deportation effort. In recent weeks, that effort has generated heartrending images from courthouse arrests and more admissions of mistaken deportations from the Justice Department. Meanwhile, the administration is moving to deport hundreds of thousands of people who entered the country legally under the last administration.
The Justice Department's prosecution of McIver — stemming from a scuffle with Homeland Security agents in Newark last month — cannot be disentangled from this context. And that may ultimately prove to be the undoing of the case.
Ordinarily, there is a baseline assumption in any given federal prosecution that the Justice Department will obtain a conviction, because that is what happens more than 90 percent of the time. In McIver's case, however, the factual circumstances and charges are unique, and they come with all sorts of quirks and political freight — not the least of which is the fact that the administration prosecuting her over a fracas at a government facility is the same one that pardoned hundreds of people accused (and in many cases convicted) of violently assaulting or resisting officers during the siege of the U.S. Capitol on Jan. 6, 2021.
Ultimately, conviction at a trial — if it ever gets there — is far from assured. And for a variety of reasons, the odds that McIver will ever spend a day in prison on the charges appear to be low, if not close to zero.
The indictment charges McIver with two felony counts of physically assaulting, resisting or impeding two Homeland Security agents during an altercation that occurred last month after McIver and two other House members showed up to inspect an ICE detention facility in Newark. New Jersey Mayor Ras Baraka was also present. A third count in the indictment appears to charge McIver for the same conduct in the form of a single misdemeanor.
Prosecutors initially charged McIver with the first two counts in a criminal complaint shortly after the encounter. A criminal complaint is a charging document that requires approval only by a magistrate judge, and it is often used when prosecutors want to begin a case quickly (without having to empanel and present evidence to a grand jury). In order to proceed on felony charges, however, prosecutors must eventually get an indictment from a grand jury.
The Justice Department alleges that one of the agents instructed Baraka to leave a secure part of the area outside the facility while at the same time acknowledging that as a member of Congress — who has the legal right to inspect ICE detention facilities without providing advance notice — McIver could remain. A scuffle ensued as McIver and others sought to prevent the removal of Baraka, who was eventually arrested on a trespassing charge.
The indictment alleges that McIver 'slammed her forearm into the body' of one agent and 'reached out and tried to restrain [him] by forcibly grabbing him.' The indictment further alleges that, after Baraka's arrest, McIver 'pushed past' the second officer and used 'each of her forearms to forcibly strike [him] as she returned inside of the secured area of the facility.'
The felony charges come with a maximum penalty of eight years — and no readily identifiable precedent. (The misdemeanor count maxes out at a year.)
We are relatively used to seeing members of Congress charged with white-collar crimes, like insider trading or bribery. Lawmakers are also sometimes arrested during nonviolent protests. That happened, for instance, during the Biden administration, when 17 members of Congress were arrested during a protest outside the Supreme Court over abortion rights. They each paid a $50 fine to resolve the matter.
The claim against McIver is that she attempted to forcibly interfere with Baraka's arrest, but the first red flag against DOJ's argument is that prosecutors quickly dropped the charge against Baraka. The federal magistrate judge overseeing the Baraka case described the 'hasty arrest' as a 'worrisome misstep' and the dismissal of the charge as an 'embarrassing retraction.' It is not the sort of fact pattern that generally gives rise to prosecutions of secondary figures on the scene, much less a sitting member of Congress.
McIver also has defenses that she can assert at the pretrial stages and, if necessary, during a trial itself.
One possible defense out of the gate is for McIver to invoke the Constitution's Speech and Debate clause, which provides civil and criminal immunity for members of Congress engaged in legislative activity, including oversight activity. Still, it is not clear how a judge would resolve this argument, since the law in this area is notoriously unclear, and cases are often decided on fact-specific grounds.
Here, there is little question that McIver's oversight activity at the facility — at least as an initial matter — is entitled to some form of criminal immunity, but the dispute will concern the precise scope of that protection. Prosecutors are likely to argue that any such immunity does not extend to a physical assault on federal law enforcement officers because that particular conduct is not legislative in nature.
If the case does go to trial, it should be brief — perhaps a one- or two-day affair.
McIver is being represented by Paul Fishman, a well-regarded former U.S. Attorney in New Jersey, who has previewed the trial defense in comments to the press in which he has described a 'melee' prompted by federal agents who were seeking to arrest Baraka and a resulting 'fracas' that enveloped McIver.
'At times she was barely able to keep her balance,' Fishman said, and at others 'she was shoved and seemed to raise her arm in an effort to free it.' He added, 'To say a jury could conclude she should be convicted criminally, when the charges against Baraka have already been dismissed, is a stretch to say the least — especially given that she was not arrested at the scene and agents later allowed her to conduct the site visit.'
This is a sound defense, particularly given the fact that the statute requires the Justice Department to establish — beyond a reasonable doubt — that McIver 'forcibly' assaulted or resisted law enforcement officers. The video available to date is not crystal clear about what took place, but it does suggest something far less nefarious — a regrettable scrum in which McIver, who is not exactly a towering or physically intimidating figure, tried to maintain her balance while reacting to a highly unusual altercation with officers that was premised on an arrest that they have since effectively disavowed.
The politics of the venue could also come into play and work sharply against the Justice Department. The jury pool for the court in Newark where McIver was charged is drawn from counties in northern New Jersey that, in the aggregate, are not favorable terrain for Trump. Former Vice President Kamala Harris outperformed Trump in those counties in the 2024 election by a margin of roughly 55-42 percentage points.
Then there is the broader political context, which may prove impossible for some jurors to ignore. Shortly after McIver's initial arrest, Trump told reporters, 'She was shoving federal agents. She was out of control. The days of that crap are over in this country.'
This may come as news to anyone whose memory stretches all the way back to January, when Trump pardoned hundreds of violent criminals who tried to overrun the U.S. Capitol in a clash with law enforcement in order to overturn the 2020 election in his favor. Or to anyone who knows that Trump has pardoned or commuted the prison sentences of dozens of political allies who were convicted of serious offenses. Trump's campaign of selective and politically expedient benevolence is not exactly consistent with the tough-on-crime ethos that he has otherwise tried to project.
Under the circumstances, it is not hard to envision one or more jurors refusing to convict McIver on these grounds alone — or, indeed, for her to be fully acquitted by a unanimous verdict of the jurors. The charges certainly appear to many as both politically motivated and, at a bare minimum, unwarranted as a matter of appropriate prosecutorial discretion.
Meanwhile, in the event that McIver is convicted in a trial, the odds of her being sentenced to any prison time are low.
Perhaps she would get a fine, but she would be a first-time offender, and one of the factors that sentencing judges must consider is 'the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.' In that context, if Justice Department prosecutors actually sought prison time, Trump's Jan. 6 pardons could present a major — and perhaps insurmountable — obstacle.
Not surprisingly, the Trump administration has already sought to project an air of confidence around the case in public comments, with acting New Jersey U.S. Attorney (and former Trump lawyer) Alina Habba saying that Tuesday's 'decision by the grand jury is the next step in a process that my Office will pursue to a just end.'
The truth is that, depending on how things play out, the whole thing could eventually blow up in their faces.