A divided US Court of Appeals for the Third Circuit panel ruled Wednesday that New Jersey Rep. LaMonica McIver can face prosecution on two of three charges over a scrum with federal agents at Delaney Hall, rejecting her argument that the Speech or Debate Clause and separation-of-powers principles immunize her conduct during a legislative oversight visit to the facility.
McIver and two other lawmakers were conducting an unannounced oversight inspection of Delaney Hall, an Immigration and Customs Enforcement (ICE) detention facility in Newark, on May 9, 2025, when Mayor Ras Baraka arrived and was ordered to leave the secured area. Agents then moved to arrest Baraka on the Deputy Attorney General’s authorization, and McIver placed herself between him and a Homeland Security Investigations special agent. She was indicted on three counts of violating 18 USC Section 111(a), including for allegedly striking that agent and an ICE deportation officer while trying to stop the arrest and reenter the facility.
Judges Cindy Chung and Stephanos Bibas held that the conduct underlying Counts One and Two was not “ambiguously legislative” under the two-step test set out in United States v. Menendez, so prosecuting those counts would not force McIver to answer for legislative acts. The panel vacated and remanded Count Three, finding the district court never separately analyzed it, and dismissed the remainder of her appeal, including her selective and vindictive prosecution claims, for lack of jurisdiction. It also rejected McIver’s bid to extend Trump v. United States‘ presidential immunity framework to legislators, noting the Clause addresses that concern.
Judge Thomas Ambro joined in rejecting the separation-of-powers theory but dissented in part. He would vacate the Count Two denial for fact-finding on whether McIver’s contact with the officer was legislative, and, citing the principle that “the Constitution does not permit the Executive to wield its considerable discretion over criminal prosecutions in retaliation against disfavored legislators,” would find jurisdiction to allow discovery into her selective and vindictive prosecution claims.
McIver, the only sitting member of Congress under indictment by the Trump Justice Department, faces up to 17 years in prison if convicted. “I fundamentally believe that the court got it wrong here,” she said in her statement. “I will not fold to this administration … This is not over.” Her attorney, Paul Fishman, said the ruling risks letting the government “thwart members of Congress from inspecting an ICE detention facility, create chaos, and then prosecute those members and pretend it was their fault.”
The case follows a pattern of clashes between ICE and elected Democrats that has included Brad Lander’s arrest at a New York immigration court and, cited in the opinion itself, Neguse v. ICE, which found the same appropriations rider McIver invoked likely barred DHS’s notice requirement for oversight visits. On remand, the district court must now decide whether Count Three’s broader conduct, covering McIver’s actions both inside and outside Delaney Hall’s security gate, includes protected legislative activity before her prosecution can proceed on that count.
