Appeals court rejects Rep. LaMonica McIver’s bid to avoid trial on assault charges

A federal appeals court Wednesday largely rejected Rep. LaMonica McIver’s bid to have criminal charges against her thrown out, ruling that two of the three counts she faces over a confrontation with federal agents outside a Newark immigration detention center are not shielded by congressional immunity.

In a 49-page filing, a divided three-judge U.S. 3rd Circuit Court of Appeals panel affirmed a lower court’s decision that allowed prosecutors to proceed on the first two counts of the indictment, which accuse McIver of striking and grabbing federal agents outside Delaney Hall in May 2025. The court sent the third count back to the lower court for further review.

McIver, a Democrat who represents the 10th District, had argued the Constitution’s speech or debate clause, which shields lawmakers from prosecution for legislative acts, protected her conduct that day. But the majority’s ruling says McIver’s physical contact with agents was “unambiguously non-legislative.”

“In sum, Count One neither charges Congresswoman McIver for an act that is legislative in nature nor requires that she answer for any legislative act,” it says.

Two of the judges on the panel — one a Donald Trump appointee, the other named by Joe Biden — agreed that McIver is also not shielded from prosecution for the second count of her indictment. The third judge, named by Bill Clinton, disagreed and said he would have returned that count to the lower court for further review.

All three judges agreed that the third count should be reviewed again by a lower-court judge because he did not properly assess its claims against McIver.

McIver in a statement said “this is not over.”

“I fundamentally believe that the court got it wrong here. 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 said.

The charges stem from a chaotic scene outside Delaney Hall on May 9, 2025, when Newark Mayor Ras Baraka (D) was arrested by federal agents as McIver and two other members of Congress were on site to conduct an oversight inspection of the facility. A melee occurred as federal agents moved to arrest Baraka, and body camera footage from the episode shows McIver pushing agents during the scuffle. Agents did not arrest McIver that day.

Days later, federal prosecutors announced they were dropping the trespassing charge against Baraka but filing assault charges against McIver. She was soon indicted, and she has argued that the Trump administration targeted her because she is a vocal critic of its policies. She has pleaded not guilty.

McIver faces up to 17 years in prison if convicted. She is facing reelection in November.

Paul J. Fishman, McIver’s attorney, said McIver’s team is “evaluating all possible next steps.” McIver could ask the full 3rd Circuit to hear her appeal or ask the U.S. Supreme Court to weigh in.

“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, create chaos, and then prosecute those members and pretend it was their fault. The goal of the administration is clear: chill members of Congress from overseeing the actions of the Trump administration,” Fishman said.