A federal appeals court on Wednesday allowed two criminal charges against U.S. Rep. LaMonica McIver to move forward but ordered further review of a third count arising from a confrontation outside a Newark immigration detention center.
The ruling means McIver, a New Jersey Democrat, will likely stand trial for the alleged assault on federal officers at the May 2025 Delaney Hall protest. McIver, who is expecting her second child this fall, faces federal charges that could result in up to 17 years in prison.
"I fundamentally believe that the court got it wrong here," McIver, D-10th Dist., 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."
"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," she added. "I will not fold to this administration. ... This is not over."
The U.S. Court of Appeals for the Third Circuit ruled that McIver's alleged physical contact with ICE officers during the May 9, 2025, confrontation at Delaney Hall was not protected legislative activity simply because she was there conducting congressional oversight.
The three-judge panel found that the third count against the Newark Democrat was so broadly written that it may include conduct protected by the U.S. Constitution's Speech or Debate Clause.
The appeals court sent that charge back to U.S. District Judge Jamel K. Semper to determine whether it includes protected legislative acts and, if so, whether the count can survive without them.
The ruling represents a significant victory for federal prosecutors, who can continue pursuing the first two counts against McIver, while leaving open the possibility that the third count could be narrowed or dismissed.
Paul J. Fishman, McIver's attorney, said they were disappointed and disagreed with the ruling.
"As we argued before the court, it is too dangerous if the Departments of Justice and Homeland Security are able to thwart members of Congress from inspecting an ICE detention facility," Fishman said.
A spokesperson for McIver said President Donald Trump's administration is using criminal charges to go after political opponents "who dare conduct oversight of their activities."
"Congresswoman McIver was doing her job at Delaney Hall, and for that she has been targeted, burdened with wildly expensive and time-consuming litigation," the spokesperson said.
McIver was charged following a confrontation outside Delaney Hall while she and two other members of Congress were conducting an unannounced inspection of the federal immigration detention facility.
The appeals court acknowledged that McIver's inspection of Delaney Hall was a protected legislative activity conducted under congressional oversight authority.
The confrontation unfolded after federal officers moved to arrest Newark Mayor Ras Baraka, who had also come to Delaney Hall.
Prosecutors allege in Count One that McIver slammed her forearm into a Homeland Security Investigations official and tried to restrain him as officers moved to arrest Baraka.
The appeals court said that the alleged conduct was plainly not a legislative act.
"McIver's physical contact with Victim 1 was not 'integral' to her congressional inspection of Delaney Hall," the court said in its opinion.
Count Two accuses McIver of pushing past an ICE officer and striking him with both forearms as she attempted to reenter the secured portion of Delaney Hall.
The court reached the same conclusion on that charge, finding that pushing past or forcibly striking an officer is not a legislative act protected by the Speech or Debate Clause.
McIver had argued that her efforts to enter the detention center were part of her official congressional duties and protected by federal law granting members of Congress access to immigration detention facilities for oversight purposes.
The appeals court said that right did not provide immunity for all conduct occurring while McIver was attempting to enter the facility.
"Count Two does not charge Congresswoman McIver for entering Delaney Hall," the majority wrote. "It charges her for pushing past Victim 2 and using her forearms to forcibly strike him."
The third charge presented a different problem for the court.
Unlike the first two counts, Count Three does not identify one specific act or federal officer. Prosecutors said during oral arguments that the charge covers "essentially all" of McIver's alleged efforts to hinder Baraka's arrest, including conduct that began inside Delaney Hall's security gate.
The appeals court said Semper had failed to separately analyze whether some of that broader conduct was part of McIver's constitutionally protected congressional oversight.
The panel therefore ordered him to reconsider the charge.
McIver had previously sought dismissal of the indictment, arguing that the The Trump administration was effectively trying to imprison her for carrying out her congressional duties and that the prosecution was politically motivated.
She also argued that the Supreme Court's 2024 presidential immunity decision in "Trump v. United States" supported broader immunity for legislators performing official duties.
The appeals court rejected that argument, saying members of Congress already receive specific constitutional protection through the Speech or Debate Clause and are not entitled to an additional layer of immunity under general separation of powers principles.
The Constitution's separation of powers doctrine "does not afford legislative immunity beyond the protection of the Speech or Debate Clause," the court concluded.
McIver also claimed she was being selectively and vindictively prosecuted because of her political opposition to the Trump administration and her oversight of federal immigration enforcement.
The appeals court did not rule on whether those allegations had merit.
Instead, the majority said it lacked jurisdiction to consider those claims at this stage of the criminal case because they could be reviewed after a trial.
As a result, Semper's earlier rejection of McIver's selective- and vindictive-prosecution arguments remains in place.
Judge Thomas Ambro agreed with the majority on Count One and that Count Three should be returned to the district court, but he dissented from the decision allowing Count Two to proceed without further review.
Ambro said a judge should determine whether McIver deliberately struck the officer or merely made incidental physical contact while attempting to reenter Delaney Hall to continue her federally authorized inspection.
The judge also took issue with the majority's refusal to immediately consider McIver's claim that the case was politically retaliatory.
Ambro wrote that McIver had presented enough evidence to warrant discovery into whether prosecutors were seeking to punish her for congressional oversight and political opposition.
"When they do occur, the constitutional foundation of our government is at risk," Ambro wrote of potentially retaliatory prosecutions of sitting members of Congress.
The case will now return to federal court in Newark for further proceedings on Count Three while the first two charges remain intact.
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