A federal appeals court ruled Wednesday that the Justice Department can proceed with most of its case against Rep. LaMonica McIver, who stands accused of assaulting an ICE officer during a scuffle last year at a migrant detention center.
The 3rd U.S. Circuit Court of Appeals did ask a lower court to go back and review one of the three counts in the indictment, but rejected the New Jersey Democrat’s challenge to two other counts, saying she can’t shield herself by claiming the scuffle was part of her official congressional duties.
Judge Cindy Chung, a Biden appointee, said that while Ms. McIver’s visit to the Delaney Hall migrant detention facility in Newark was part of her legislative duties, the physical confrontation was not.
“Count One charges Congresswoman McIver not for conduct relating to her entire visit to Delaney Hall, but for conduct during a specific interaction between her and Victim-1,” wrote Judge Chung, joined by Judge Stephanos Bibas, a Trump appointee.
They applied a similar logic to the second count of the indictment.
The third charge in the indictment, however, might implicate Ms. McIver’s legislative duties. The appeals court asked the district court to review that matter.
The appeals court did deny Ms. McIver’s claim that the prosecution against her was selective or vindictive. The lower court had ruled against the congresswoman, and Judge Chung said any appeal of that must come later, after a trial.
Judge Thomas Ambro, a Clinton pick, partially dissented from the decision, saying he would have asked the lower court to review the second count of the indictment as well as the third. He also said Ms. McIver should be allowed to explore whether the case was brought to punish her as a member of Congress.
The case has become a battleground over the executive branch’s ability to prosecute a member of the legislative branch.
The scuffle broke out when a group of Democratic politicians tried to enter Delaney Hall, which was opened over the objection of local officials in Newark.
After officers tried to get one of the group, Mayor Ras Baraka, to leave, several congressional Democrats moved to try to prevent his ouster.
During the scuffle that ensued, Ms. McIver was caught on video bashing ICE employees with her forearm.
Ms. McIver said she was at the facility in Newark to conduct oversight as a member of Congress, in accordance with a law that specifically granted House and Senate members access.
After the confrontation, Ms. McIver and two other Democratic members of Congress did complete their oversight inspection.
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