Do the legal protections for members of Congress hold even if they’re charged with assaulting a federal officer? That’s the question three federal judges considered Wednesday for nearly two hours in the case against Democratic Rep. LaMonica McIver.
One of the first questions asked by the panel of judges in Wilmington, Delaware, was whether a member of Congress, during their legislative duties, would be protected if he “comes across a teenage girl and gropes her.”
“Isn’t this as weak a case as I hypothesized?” Judge Stephanos Bibas, who President Donald Trump nominated in his first administration, asked McIver’s attorney during Wednesday’s hearing.
In 2025, McIver was charged with assaulting an officer during her visit to an immigration detention facility in New Jersey when officers began to arrest Newark Mayor Ras Baraka outside the facility — an arrest that officials quickly dropped.
Prosecutors allege that McIver slammed her forearm into one officer and tried to restrain another by grabbing him as well as using her forearms to push against an officer when she was trying to get back into the facility.
The indictment against McIver does not allege that any officers were injured during the incident.
McIver’s attorney, Paul Fishman, said the New Jersey congresswoman was doing her legislative duty of oversight at the facility, which has become a recent hotbed for protests and violent clashes between law enforcement and protestors.
Fishman argued that the judges should “look at the field visit as a whole,” adding that the reason McIver and two other members of congress went outside the facility during Baraka’s arrest “was oversight” of Immigration and Customs Enforcement and the Department of Homeland Security.
The Speech and Debate clause in the Constitution generally protects members of Congress from prosecution for actions that fall within their duties.
“Being a critic of the administration,” Fishman said, is what the clause was designed to protect. “They are picking on someone who is a member of Congress” because she disagrees with the administration, Fishman said.
“Use of physical force is never, never covered by the Speech and Debate clause,” attorney for the Justice Department Mark Coyne shot back Wednesday, while acknowledging the case was “certainly not something I’m taking lightly.”
The case against McIver is on pause while the Third Circuit considers her appeal of a lower court ruling that rejected her efforts to toss the case on several issues, including congressional protections and vindictive prosecution.
When asked about Fishman’s effort to have the court consider the issue of whether the case was brought vindictively by the Trump administration, Coyne pushed back.
“I’m still here,” Coyne said, adding that if the administration started to charge a bevy of lawmakers, a hypothetical posed by Judge Thomas Ambro, an appointee of former President Bill Clinton, Coyne would do “everything in my power” to ensure that would not happen.
On rebuttal, Fishman said the decision to prosecute was not Coyne’s but came from the Justice Department. “They are not made in Newark,” Fishman said of the decision to prosecute enemies of Trump.
Judge Ambro also questioned if Coyne could point to any other case where a lawmaker was charged with pushing against an officer as they were trying to make their way through a scrum.
“That doesn’t seem like assault,” Ambro said of one of the charges McIver faces.
Coyne conceded the case was not normal.
Fishman told the judges he was “not arguing that an assault is a legislative act” but rather that McIver was doing her congressional duties of oversight when immigration agents began to unlawfully arrest Baraka for his presence in the facility.
“If any member walks into a bar and decks an ICE officer,” Fishman said, that would not be protected.
McIver has pleaded not guilty to the charges, which carry a maximum of 17 years in prison.
During a press conference following the hearing, McIver, several months pregnant, told reporters the case was merely Trump going after his political enemies.
“I have literally the president of the United States and the Department of Justice trying to send me to jail for 17 years — that’s very frightening,” she said. “The point of it all is cruelty. The process is the pain for them.”
