WILMINGTON, Delaware — A panel of appeals court judges on Wednesday struggled with the extraordinary prosecution of New Jersey Rep. LaMonica McIver for assault.
Members of the three-judge panel from the 3rd Circuit Court of Appeals heard close to 90 minutes of arguments — about three times longer than expected — over whether the Constitution protects McIver from prosecution and whether the Trump administration is illegally targeting the first-term Democrat.
McIver was charged with assaulting law enforcement officers following a chaotic May 2025 scrum outside Delaney Hall, a controversial immigration detention facility in her district in Newark. The now-visibly pregnant lawmaker faces 17 years in prison.
The judges — one Trump appointee and two Democratic appointees — seemed skeptical of whether McIver is 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.
Judge Stephanos Bibas, who was nominated by President Donald Trump in 2017, asked if a lawmaker would be protected if they groped a girl inside an immigration detention facility. He repeatedly suggested — adopting the same approach as the trial court judge — that the minute or so of chaos outside the gates of Delaney Hall could be separated from McIver’s official duties.
McIver, who is running for reelection, argues she was conducting an oversight visit when federal agents moved to arrest Newark Mayor Ras Baraka. That set off a scrum as McIver and others moved to encircle the mayor. McIver is accused 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. A single trespassing charge against Baraka was dropped.
McIver defense attorney Paul Fishman said members of Congress have something akin to police officers’ qualified immunity — a presumption that works in their favor.
“She wouldn’t have drawn a flagrant foul in the Knicks-Spurs game,” Fishman said.
Bibas didn’t seem to buy it and suggested the speech or debate clause may prevent prosecutors from presenting evidence in court, but it wouldn’t protect McIver from a trial.
“I worry that you are blurring the distinction between immunity and the evidentiary privilege,” he said.
Judge Cindy Kyounga Chung, a Biden nominee, said it was “very hard” to understand what some of the conduct they were supposed to be looking at in the case.
Judge Thomas Ambro, a Clinton nominee, said he struggled to find where anyone had ever been charged for this level of contact.
Ambro wrote one of the last major rulings on the speech or debate clause when he rejected former Sen. Bob Menendez’s attempt to get corruption charges against him thrown out in 2016. In the McIver case, Ambro seemed more interested in the possibility of dismissing the charges as selective and vindictive prosecution.
Ambro wondered whether the court should step in to throw out charges if they are being done only to “get a pound of flesh” and put people through the “ordeal of a trial.”
Mark Coyne, the chief of the appeals division in the New Jersey U.S. Attorney’s Office, argued that the court doesn’t have the power to intervene on those grounds before a trial.
Outside the courthouse, McIver said the legal process is exhausting and frightening.
“The point of it all is cruelty,” she said, referring to the Trump administration. “The process is the pain for them, and they enjoy that, and they're watching me, a new member of Congress, go through that.”
Ambro asked what courts should do if “a lot of” members of Congress or former administration officials are being indicted. He didn’t name another case, but it appeared to be a reference to the kinds of cases the Trump administration has pursued against critics, including Sen. Mark Kelly and former FBI Director James Comey.
“This court is not sitting here in a vacuum," Fishman said, to try to drive the line of thinking home to the court.
But Coyne said no matter how extraordinary the case, the court simply cannot intervene on selective prosecution until after the trial. There is “no such thing as interesting question jurisdiction,” he said.
Even if the court rules against McIver, there are unanswered questions about how a trial would happen. There are clearly limits on the kinds of evidence prosecutors can introduce about lawmakers’ actions or motives. A second corruption case against Menendez was bogged down with such questions. He’s now serving an 11-year prison sentence, but appealing on speech or debate grounds.
Bibas said juries may not like these kinds of cases and suggested the DOJ was rolling the dice by bringing the charges. At one point, Coyne said one of the charges was a “close call.”
Delaney Hall continues to be in the news. There have been clashes in recent weeks outside the facility between protesters and Immigration and Customs Enforcement agents, as well as local authorities. Democratic New Jersey Gov. Mikie Sherrill briefly limited access to the facility and Baraka, the Democratic mayor of Newark, also briefly imposed a partial curfew in the industrial neighborhood around Delaney Hall.
During her last oversight visit to the facility last week, McIver said she was denied access to detainees.
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