Federal court rejects New Jersey Democrat congresswoman’s bid to drop ICE assault charges

New Jersey Rep. LaMonica McIver will likely face a trial on charges that she assaulted an ICE agent during a scuffle outside of Delaney Hall after a federal appeals court rejected the Newark Democrat's bid to dismiss the charges.

In a 2-1 ruling, the Third Circuit Court of Appeals said McIver is not immune from prosecution on assault charges stemming from the June incident and rejected her claim that the Constitution’s “speech or debate” clause prevents lawmakers from being charged for carrying out their legislative duties.

In a 49-page split decision on Wednesday the panel said the case could move ahead to trial, with Judge Thomas L. Ambro dissenting.

The court's majority said the brief confrontation between McIver and law-enforcement officers outside of Delaney Hall was excluded from the "speech or debate" clause and pointed out that the Department of Justice "neither charges Congresswoman McIver for an act that is legislative in nature nor requires that she answer for any legislative act."

Under federal law, members of Congress can make unannounced "oversight" visits to immigration facilities that “detain” immigrants. A policy set by the Department of Homeland Security requires lawmakers and their staff to request a visit at least 7 days in advance. The press and public are not allowed on those visits.

In June, the Justice Department charged Democratic Rep. LaMonica McIver of New Jersey with assaulting law enforcement agents during a clash outside the gates of Delaney Hall ICE during a scuffle between protesters, lawmakers, and law-enforcement officials. Newark Mayor Ras Baraka was arrested during the protests. McIver has denied the allegations and called the charges "politically motivated."

The ICE facility at 26 Federal Plaza has become ground zero in Massachusetts Democrats’ push against what they say is unlawful overreach by federal immigration agents. It’s one of 25 ICE Enforcement and Removal Operation facilities across the country. McIver and other Democrats have regularly held press briefings outside the building to criticize ICE enforcement tactics.

McIver blasted the ruling saying it "emboldens the Trump administration to continue persecuting our most vulnerable communities, those who try to defend them, and anyone who dares hold the president or his lackeys accountable."

“I fundamentally believe that the court got it wrong here," she said in a statement. "To protect the people, their elected representatives must be authorized to conduct oversight of the executive branch without fear of retaliation."

In a legal brief filed by a bipartisan group of 20 former members of Congress, many of them Republicans, the lawmakers argued that allowing the charges to proceed would have a "chilling effect" on legislators’ ability to perform their oversight duties and act as a check on presidential administrations.

“To [fail to dismiss] would deter Members of Congress from carrying out their essential oversight responsibilities and insulate Executive abuses from the checks and balances the Constitution intends,” the lawmakers wrote to the court. “Thus, it is no exaggeration to say that if this prosecution is allowed to proceed, it would imperil the constitutionally mandated powers of Congress and the fabric of our constitutional order.”