One day after Rep. LaMonica McIver lost her second bid to scuttle a three-count indictment alleging she assaulted U.S. law enforcement, it appears the congresswoman is attempting to fight two cases at once, neither of which would be won at trial.
During a call with reporters on Aug. 27, McIver and her lead attorney outlined a plucky defense designed not only to spare herself potential exposure to eight years in federal prison but also parlay a pre-trial win dismissing the charges into legal precedent that would enshrine lasting congressional protections against executive overreach.
"We haven't figured out what is in the congresswoman's best interests and also in the interest of making sure the courts really understand these issues," said McIver's lead defense counsel Paul Fishman. "We feel strongly about that."
Fishman, who formerly tried cases as the U.S. Attorney for The District of New Jersey, has been arguing the federal judiciary quash McIver's indictment before a jury is even empaneled on three key legal standings: legislative immunity, vindictive and selective prosecution, and the U.S. Constitution's Speech and Debate Clause.
"I'm grateful to my colleagues on the Democratic caucus who understand this isn't just about LaMonica McIver; it's about them as well," the congresswoman said. "If it can happen to me, it can happen to anyone when you have an executive branch questioning the job description and responsibilities of Congress."
Rep. Bonnie Watson Coleman (D-Ewing,) who was at Delaney Hall with McIver at the time of the alleged scuffle, has continually denounced the indictment as a trumped up charge intended to chill the legislature's obligation to challenge the policies and decisions of the nation's chief executive.
"Criminalizing oversight deters lawmakers from holding Trump accountable, even if Democrats take back Congress," Watson Coleman has stated. "[McIver] is strong and won't be intimidated, but the continued attacks on her for doing her job is dangerous to our democracy."
The Speech and Debate Clause has been interpreted time and again as a type of legislative immunity itself, particularly one that separates the legislative and executive branches, while shielding "disfavored members" of the former from the latter's legal reprisal, as former Chief Justice Earl Warren once wrote.
It doesn't grant lawmakers "license to do whatever they want, whenever they want," Fishman said on Thursday's press call. It's meant to provide for swift action in moments of "legitimate congressional oversight" without fear of charges when the act's criminality is as debatable as its prudence.
Moreover, such protections do not beg the question of "whether or not she's guilty," Fishman said of seeking to have the case tossed as a matter of his client's immunity as argued in court. "We should never get to that question in this case."
McIver hosted the gaggle of reporters over Zoom in response to the appellate panel's 2-1 ruling against claims she was protected from indictment for allegedly grabbing and shoving her way past Homeland Security and ICE agents as they arrested Newark's mayor, Ras Baraka, outside the Delaney Hall migrant detention center in June 2025.
The arrest roiled a mass of protestors into chaos, knocking everyone at the center of the crowd pell mell, including federal agents, McIver and two other members of New Jersey's congressional delegation ― the three of whom were there to ensure the facility met National Detention Standards but went outside to check on the commotion.
As agents pulled Baraka inside the facility's gate, the crowd pressed forward while McIver swung her arms wildly and reached after the mayor. In footage of the imbroglio, she can be seen briefly clasping one of the arresting agent's arms and elbowing another as she tries to push her way through the crowd.
The specific law prosecutors have alleged she violated by making "physical contact" with the Homeland Security Investigator and ICE agent relies on two core elements: intent and force, according to the Justice Department and a landmark ruling by the 4th Circuit U.S. Court of Appeals. Whether McIver's physical contact with the victims was forceful enough to threaten or injure either agent is unclear and will be left for jurors to decide should her case proceed to trial.
Two separate panels of jurors weighed in on a similar charge against Sean Dunn, the former Justice Department employee accused of throwing a sandwich at a Border Patrol and Customs agent in Washington D.C. last year. The attempt to prosecute Dunn first failed when a grand jury declined to indict Dunn on federal charges of assaulting and impeding the agents and again in November when a separate jury acquitted him on misdemeanor charges of the same at trial. His defense used viral video of the incident to show the alleged attack was a "meaningless gesture," that failed to meet the core elements of assault.
"We all know this was not a weapon thrown with force," Dunn's attorney stated in her closing arguments.
McIver and her defense team have 14 days from the ruling to request a new hearing from the same panel, according to Fishman. Alternatively, the congresswoman can request a ruling from the full bench of 3rd Circuit judges, seek to have Wednesday's order overturned by the U.S. Supreme Court or any combination of the three as they work their way through the judiciary.
In its Aug. 26 opinion, the panel partially upheld a prior ruling by District Judge Jamel Semper that McIver does not enjoy legislative immunity for her attempts to stymie Baraka's arrest in two of the indictment's three counts of assaulting and impeding the federal agents ― one count for each officer she with whom she made physical contact.
But made no ruling on the third count, which encompassed "essentially all" of McIver's "efforts to hinder, impede the arrest of the Mayor," the Justice Department argued during the appellate hearing. Instead, the panel remanded that matter back to District Court for further consideration, as stated in the opinion.
Semper has scheduled a conference hearing on the third count for Sept. 15.
This article originally appeared on NorthJersey.com: McIver seeks dismissal over acquittal in gambit to protect Congress