Appeals court declines to toss McIver case as panel splits on selective prosecution claims

A federal appeals court declined to toss the case against Rep. LaMonica McIver (D-N.J.), even as the panel split over a matter in which she is accused of attacking law enforcement with her forearms in a scuffle with immigration officials.

The ruling on Wednesday from the 3rd Circuit Court of Appeals comes as McIver has pushed to get the case dismissed on various grounds, including that her visit to the Delaney Hall detention facility was carried out in her role as a legislative official and should be protected by prosecution under the Speech or Debate Clause.

The three-judge panel declined to toss the case on a number of grounds raised by McIver, finding that while her inspection of Delaney Hall was protected under the clause, her intervention in the arrest of Newark Mayor Ras Baraka (D) was not.

But one judge dissented, saying McIver’s “plausibly incidental contact” with one of the officers came as she was being impeded from carrying out her legislative duties by touring the controversial detention center.

He also touched on McIver’s claims that the case amounted to a selective prosecution , saying the lawmaker “presented enough [evidence] to obtain discovery on whether this prosecution ‘was intended to prevent [her] exercise of a fundamental right’” to conduct legislative oversight.

The pending arrest against Baraka — who no longer faces charges in the matter — ignited chaos between Democrats there to tour the facility and immigration officials on site.

McIver is accused of having “slammed her forearm into the body” of one immigration officer and “using each of her forearms to forcibly strike” a second.

The appeals court determined those actions were not protected by the clause.

“The Speech or Debate Clause does not provide a blanket protection over ‘all things in any way related to the legislative process,’” Judge Cindy Chung wrote in the majority opinion.

“The nature of the conduct charged in Count One is non legislative. Congresswoman McIver’s physical contact with Victim-1 was not ‘integral’ to the ‘deliberative and communicative processes by which Members participate in committee and House proceedings.’”

The ruling determined charges related to those two incidents should stand but remanded the case back to the district court to review a third count that broadly incorporated all “efforts to hinder, impede the arrest of the Mayor.”

A second opinion from Judge Thomas Ambro dissented in part, saying his colleagues were too quick to determine that some of her actions could not be considered tied to her legislative role, saying the second count faced by McIver was at least “ambiguously” legislative.

“When an Executive Branch official prevents a Member from entering a DHS [Department of Homeland Security] facility, she is denied effective access to an oversight inspection, the investigative tool federal law supplies Members in this context,” Ambro wrote, adding that “her access to the facility depended on circumventing him somehow.”

Ambro also said the court should at least grant McIver further discovery on whether she is being selectively prosecuted.

He wrote that among lawmakers’ protections are “freedom from fear that the Executive will use criminal prosecution to punish legislators for their oversight and political opposition.”

“My colleagues believe vindication of this right is beyond our jurisdiction. I disagree. And where, as here, a legislator has presented evidence that her prosecution was brought as an act of political retaliation, I would allow her discovery into the truth of the matter—not only for her own sake but to safeguard the independence of our legislative bodies,” Ambro wrote, saying she deserved to know “whether [the case] punishes her for doing her job as a Member of Congress with specific oversight responsibilities.”