WILMINGTON, Del. (CN) – U.S. Rep. LaMonica McIver faced off with the Justice Department in the Third Circuit on Wednesday as the Trump administration accuses Democratic lawmakers of assaulting federal officers outside an immigration detention facility.
McIver faces three counts of assault, resisting, obstructing and interfering with a federal officer during a May 2025 incident outside the Delaney Hall immigration facility in Newark, New Jersey.
McIver — who was at Delaney Hall for an oversight inspection of the facility along with two other members of Congress — ended up in a standoff with U.S. Immigration and Customs Enforcement and Homeland Security officers who sought to arrest Newark Mayor Ras Baraka on trespassing charges.
Forming a circle around Baraka with other lawmakers, aides and protesters, McIver and federal officers repeatedly made physical contact before the speaker was pulled from the crowd and arrested.
While Baraka’s charges were eventually dropped, McIver ended up with three federal charges of her own and could face up to 17 years in prison.
McIver has pleaded not guilty, calling the case a “brazen attempt at political intimidation” and filing two separate motions to dismiss.
In a motion, McIver asserted that legislative immunity protects him from lawsuits under the speech or debate clause — a constitutional clause that provides members of Congress with immunity from prosecution for actions that occur within the legislative sphere. Since she was performing a legislative act by inspecting Delaney Hall, McIver argued, she could not be held criminally responsible for the fight.
In the other motion, McIver claimed the Justice Department had selectively enforced the law and prosecuted her vindictively, claiming she was targeted by the Trump administration on politicized grounds.
A New Jersey federal judge denied both motions – partly in November 2025 and in full in January 2026. McIver immediately appealed.
Defending McIver’s brawl before the panel, attorney Paul J. Fishman argued that the congresswoman’s behavior was not so egregious as to render the speech and debate clause unenforceable.
However, US District Judge Thomas L. Ambro was reluctant to agree that all of McIver’s actions around Delaney Hall could be considered legislative acts.
“At some point there’s an effort — with guns around the mayor, etc. — to do something that the government claims is trying to interfere with the arrest, how is that additional surveillance of Delaney Hall and what’s going on there?” nominee Bill Clinton asked.
“We’re not saying the assault is a legislative act,” Fishman responded, adding that he denies McIver ever carried out an assault. “It’s the person who does it and it’s the context in which it happens.”
Addressing allegations surrounding McIver’s fight outside the Delaney Hall facility, US District Judge Stephanos Bibas suggested that such activity could not be considered part of a facility surveillance operation.
“She’s not even inside the Delaney facility,” the Donald Trump appointee said. “She leaves the Delaney facility and, the government alleges, becomes involved in the fight.”
In response, Fishman placed the blame on ICE: by both refusing to allow lawmakers immediate access to Delaney Hall and by arresting Barak without probable cause, he argued, federal officers “undermine(d) the entire purpose of the speech or debate clause.”
“If this is possible for ICE to do two illegal things and three members of Congress engaged in lawful, constitutional and statutory surveillance, and something happens before them, the speech or debate clause requires that they be given that latitude,” said Fishman, a former federal prosecutor in New Jersey who is now a partner at Porter in New Jersey.
“I’m not sure the presumption is in her favor,” Bibas replied, noting that assault is still not typically considered an integral part of a lawmaker’s duties.
Representing the Justice Department, Assistant US Attorney Mark E. Coyne could not finish the first sentence of his argument before Ambro interjected, noting the unusual nature of this case.
In particular, Ambro pointed out the strangeness of accusing McIver of trying to push her way back into Delaney Hall to conduct the supervisory visit.
“I’m struggling to find anywhere where someone has been sued for that kind of behavior,” Ambro told Coyne. “I can’t imagine that a congressman would be sued for assault for using not sharp elbows, but just plowing — that doesn’t look like assault.”
“Your honor, whether it’s an assault, whether she’s acting with intent to assault, that’s a fundamental factual issue for trial,” Coyne responded. “In order for her to meet her burden under the Speech or Debate Clause, the onus is on Representative McIver to show that this was a legislative act.”
However, Coyne acknowledged that this is “not a typical case,” while still arguing that McIver broke the law.
Later, Ambro asked Coyne why McIver’s behavior could not be considered legislative, prompting a sharp response from the attorney:
“The use of force is never — ever — covered by the speech or debate clause,” Coyne said. “That’s our position.”
Shortly after going back before the panel on rebuttal, Fishman again faced the question of whether McIver’s use of force could be protected by legislative immunity.
In response, Fishman again suggested that McIver’s behavior during the scrum was not at issue, focusing instead on the context in which the scrum occurred.
“If any member of Congress walks into a bar, sees an ICE agent and puts him on the deck, it’s not covered,” Fishman told the panel. “That is not what the law is. If the member is in the midst of performing a substantively or even vaguely manifested legislative act, he is covered.”
Shifting the focus to McIver’s claims of selective enforcement and retaliatory stalking, Fishman noted body camera footage from the incident shows one federal officer telling another that then-Deputy Attorney General Todd Blanche — not a local officer — requested Baraka’s arrest.
“These calls for cases involving members of Congress — we can’t be naive about it — they don’t happen in Newark,” Fishman said. “The problem in this case is — and I can’t stress this too strongly — from the moment (members of Congress) got there, ICE’s intent was to obstruct. There was no other conclusion to be drawn.
“If you put all of these things together, it gives DOJ and DHS the ability to interfere, obstruct, obstruct, obstruct members of Congress who are doing exactly what they are allowed to do by law,” Fishman added. “And when something happens, they can say, ‘Oh my god, this is an attack! it threw a sandwichSHE threw an umbrellashe threw an elbow!’ Where are we, the judges, in 2026, that this is the government’s defense of this horrific prosecution of a sitting federal congressman?”
U.S. District Judge Cindy K. Chung, appointed by Joe Biden, completed the appeals panel.
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