Rep. LaMonica McIver (D-Newark) will face trial on at least two federal charges alleging that she assaulted and interfered with federal officers during the arrest of Newark Mayor Ras Baraka outside the Delaney Hall immigration detention facility.
A divided federal appeals court ruled today that the Constitution’s Speech or Debate Clause does not provide McIver with legislative immunity for two specific physical acts alleged in her indictment, even though the confrontation occurred during a congressional oversight visit authorized by federal law.
The three-judge panel upheld charges accusing McIver of using her forearms against two federal officers as agents moved to arrest Baraka during a May 9, 2025 protest. But the court sent a broader third count back to U.S. District Judge Jamel Semper for further review because it could include conduct protected by legislative immunity.
“Count One neither charges Congresswoman McIver for an act that is legislative in nature nor requires that she answer for any legislative act,” Judge Cindy Chung of the 3rd Circuit U.S. Court of Appeals wrote for the majority.
Chung is a Biden appointee.
The decision is a setback for McIver, but it leaves open the possibility that one charge could be dismissed or narrowed before trial.
McIver sharply criticized the ruling and said she would continue fighting the prosecution.
“I fundamentally believe that the court got it wrong here. To protect the people, their elected representatives must be authorized to conduct oversight of the executive branch without fear of retaliation,” said McIver. “Today’s decision chills that authority and 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 will not fold to this administration. We are exploring every possible option. The administration will not stop me from doing my job or standing for what is right. This is not over.”
Rep. Frank Pallone, Jr. (D-Long Branch), called the decision “incredibly worrying — not only for my friend and colleague who was simply doing her job, but also for the ability of Members of Congress to hold this administration accountable.”
McIver also received support from Gov. Mikie Sherrill.
“I continue to stand with my friend LaMonica,” stated Sherrill. “Trump weaponizing the Department of Justice to target members of Congress simply for doing their jobs is straight out of his corruption playbook. It’s a brazen, unlawful abuse of power and a direct attack on congressional oversight.”
McIver, 39, is seeking re-election against Republican Carmen Bucco and is heavily favored in a district that gave her 74% of the vote in 2024. She is pregnant with her second child, a son, who is due in October. McIver and her husband, Khalif Thomas, also have a nine-year-old daughter.
New Jersey’s 10th district, based in Newark and including portions of Essex, Hudson and Union counties, is the most Democratic congressional district in the nation. McIver won the seat in a September 2024 special election following the death of Rep. Donald Payne Jr. (D-Newark).
McIver’s prosecution stems from an unannounced inspection she conducted at Delaney Hall with Reps. Rob Menendez (D-Jersey City) and Bonnie Watson Coleman (D-Ewing). McIver serves on the House Homeland Security Committee, and federal appropriations law permits members of Congress to enter Department of Homeland Security detention facilities without advance notice for oversight purposes.
The three lawmakers were admitted through the security gate and waited for more than an hour inside the facility’s administrative office. Baraka and his security detail later entered the secured exterior area, where a Homeland Security Investigations official told the mayor that he was not authorized to remain.
Baraka left the secured area after being warned that he could be arrested. But federal agents were subsequently told that the deputy attorney general had authorized his arrest.
The agents moved outside the gate as protesters, reporters, and elected officials surrounded the mayor. McIver and the other lawmakers also left the secured area.
According to the indictment, an unidentified person yelled, “circle the Mayor,” and members of the crowd moved around Baraka as agents attempted to reach him.
The first count alleges that McIver placed herself between Baraka and the Homeland Security Investigations official, “slammed her forearm into the body” of the agent and attempted to restrain him by forcibly grabbing him.
McIver has disputed the government’s characterization of the confrontation and pleaded not guilty.
The appeals court concluded that the alleged physical contact was not part of McIver’s legislative work, even if the broader purpose of her trip was congressional oversight.
“Congresswoman McIver’s physical contact with Victim-1 was not ‘integral’” to the inspection, Chung wrote.
The panel rejected McIver’s argument that the entire Delaney Hall visit should be considered as one protected legislative act. The first count, the court said, was narrowly written to cover a specific encounter as agents attempted to arrest Baraka, not McIver’s inspection of the facility as a whole.
The second count alleges that McIver “pushed past” an ICE deportation officer and used both forearms to strike him while returning through the security gate.
McIver argued that she had a statutory right to enter Delaney Hall and that her attempt to return to the facility was part of her legislative oversight duties.
But the majority distinguished McIver entering the facility and the physical conduct prosecutors allege occurred as she did so.
“Count Two does not charge Congresswoman McIver for entering Delaney Hall,” Chung wrote. “It charges her for pushing past Victim-2 and using her forearms to forcibly strike him.”
The majority said that entering the facility was a necessary step toward conducting an inspection, but not itself an integral part of the legislative fact-finding protected by the Speech or Debate Clause.
The court compared entering Delaney Hall to a member of Congress traveling to a location where legislative work would occur. Travel may be necessary for the lawmaker to perform official duties, the judges said, but that does not make every action taken during the journey immune from prosecution.
“The acts of pushing past and forcibly striking someone are unambiguously non-legislative,” Chung wrote.
The third count presents a different problem for prosecutors.
Unlike the first two counts, it does not identify a particular act or a specific officer. Instead, it broadly accuses McIver of forcibly assaulting, resisting, opposing, impeding, intimidating and interfering with HSI and ICE officers during a larger span of the confrontation.
At oral arguments in June, prosecutors said the third count covered “essentially all” of McIver’s alleged efforts to hinder Baraka’s arrest, including conduct that began inside the security gate.
Semper had analyzed the first and third counts together when he rejected McIver’s legislative immunity claim. The appeals court said that was insufficient because the third count covers a broader range of conduct, some of which could have been connected to McIver’s oversight work.
The court directed Semper to determine whether the third count includes protected legislative acts and, if so, whether the charge can remain after those acts are removed.
Judge Thomas Ambro, a Clinton appointee, agreed that the first count could proceed and that the third required additional review. But he dissented from the court’s decision to allow the second count to stand without further fact-finding.
“Members of Congress are not above the law,” Ambro wrote. “Members of the Executive Branch are bound by law too.”
Ambro said the circumstances surrounding McIver’s contact with the second officer required closer scrutiny. The trial court, he argued, should determine whether McIver deliberately shoved the officer to inflict harm or “merely made incidental contact” while trying to reenter a facility she was legally entitled to inspect.
If the contact was incidental to a protected oversight activity, Ambro said, the Speech or Debate Clause might prevent prosecutors from using it as the basis for a criminal charge.
The ruling followed a June hearing at which McIver’s attorney, former U.S. Attorney Paul Fishman, argued that prosecutors could not separate the confrontation from the legislative purpose of the visit.
“The entire visit was a manifestly legislative act,” Fishman told the panel.
Judge Stephanos Bibas, named by Trump, pressed Fishman on the limits of that theory, asking whether a member of Congress would receive immunity for unrelated criminal behavior committed during an official visit.
Assistant U.S. Attorney Mark Coyne argued that the case was not about McIver’s inspection or her right to oversee immigration facilities. It was about alleged physical interference with officers carrying out an arrest.
“Use of physical force is never, never, covered by Speech and Debate Clause,” Coyne said during the oral argument.
The appeals court also declined to consider McIver’s claims that she was selectively and vindictively prosecuted because of her political views and opposition to President Donald Trump’s immigration policies.
McIver’s attorneys pointed to defendants charged under the same federal statute for their conduct at the U.S. Capitol on January 6, 2021, whose pending cases were dismissed after Trump returned to office.
“The only way to square Congresswoman McIver’s indictment for assault with the dismissal of similar charges against January 6 defendants whose conduct was far more egregious is the most obvious explanation: the Administration embraces the political views of that group, but does not like hers,” McIver’s attorneys said in a March brief.
The majority did not rule on the merits of that argument. Instead, it found that the appeals court lacked jurisdiction to review McIver’s selective and vindictive prosecution claims before trial.
Those claims can be reviewed after a conviction, the court said, because they do not create a constitutional right to avoid trial altogether.
Ambro disagreed and said McIver had presented enough evidence to obtain discovery into whether the prosecution was politically motivated.
The January 6 defendants identified by McIver were potentially valid comparisons, Ambro said, because many were armed, unlawfully present, had criminal records or caused injuries, while McIver did not.
“The differences between Congresswoman McIver and the comparators make it more likely, not less, that she was prosecuted selectively,” Ambro wrote.
The majority also rejected McIver’s attempt to invoke the broader separation-of-powers immunity the U.S. Supreme Court recognized for presidents in Trump v. United States. The court ruled that presidential immunity does not expand the protections available to members of Congress.
“The Speech or Debate Clause immunizes legislative acts only,” Chung wrote. “Expanding legislative immunity to cover a broader scope of conduct would exceed even the Presidential immunity recognized in Trump.”
The case now returns to Semper to reconsider the third count and set the remaining charges on a path toward trial.
Former Assistant U.S. Attorney Lee Cortes also represents McIver.
This story was updated at 3:10 PM.