Judge Greenlights Rep. LaMonica McIver Prosecution

A federal judge on Thursday declined to toss federal assault charges against New Jersey Rep. LaMonica McIver.

The first-term Democrat was charged with assaulting law enforcement officers following a chaotic scrum outside an immigration detention facility in May.

McIver argued that the prosecution — led by Alina Habba, a former personal attorney to President Donald Trump whom he picked to be the state’s top federal prosecutor — was unfair and that she was shielded from the charges by the Constitution’s “speech or debate” clause, which grants members of Congress a form of immunity that is mostly impenetrable in investigations relating to the official duties of lawmakers.

U.S. District Judge Jamel Semper, an appointee of former President Joe Biden, disagreed and refused to toss two of the three counts, while reserving judgment on a third until he sees more evidence.

“Defendant’s active participation in the alleged conduct removes her acts from the safe harbor of mere oversight,” he wrote in a 41-page opinion. “Lawfully or unlawfully, Defendant actively engaged in conduct unrelated to her oversight responsibilities and congressional duties.”

In a statement, McIver said she was disappointed by the decision and portrayed her prosecution as one in a series of legal attacks by the Trump administration on the president’s foes.

“I am not in this fight only for myself, and I am concerned that this decision will simply embolden the administration,” she said.

Her attorney, Paul Fishman, said McIver and her legal team are “evaluating next steps” in response to legal decisions they believe “are wrong.”

McIver is accused in a three-count indictment of slamming a federal agent with her forearm, “forcibly” grabbing him and using her forearms to strike another agent. Allegations of physical violence by a sitting member of Congress are rare.

The alleged assaults occurred during a 68-second span in the midst of a three-hour oversight visit to the Delaney Hall Detention Facility in Newark, New Jersey, when McIver and fellow Democratic Reps. Bonnie Watson Coleman and Rob Menendez were part of a chaotic scene as immigration agents moved to arrest city Mayor Ras Baraka on a trespassing charge that was later dropped.

McIver’s trial was scheduled to begin earlier this week, but Semper delayed it as he weighed the complex legal issues and perhaps in anticipation of an appeal.

In his written opinion, Semper seemed to draw a line between alleged contact inside a gated area at Delaney Hall, which the congressional Democrats were allowed to inspect, and actions outside, which is where agents moved to arrest Baraka and where prosecutors allege that McIver committed two crimes: assaulting an agent and impeding that arrest.

The count Semper did not fully rule on involves alleged contact between McIver and an agent inside the gated area after the scrum outside the gate.

“Irrespective of the pardon, the January 6 defendants are not similarly situated to Defendant because the facts and circumstances surrounding their criminal cases are unambiguously distinct,” Semper wrote.

While McIver quoted Trump and Habba’s rhetoric to claim vindictive prosecution — including Habba’s wish to “turn New Jersey red” — Semper ruled that McIver failed to demonstrate the case against her is “the result of personal animus harbored by the prosecution.”