"Not with a bang, but a whimper": Experts say charging NJ Democrat will backfire on Trump DOJ

The announcement of charges against a Democratic lawmaker earlier this month marks a dramatic escalation in the Trump administration’s clashes with other branches of government that legal experts say may not hold up in court.

Rep. LaMonica McIver, D-N.J., stands accused of two counts of assaulting, resisting and impeding an Immigration and Customs Enforcement officer. U.S. Attorney Alina Habba, who previously served as President Donald Trump’s personal lawyer, announced the charges last Monday after what she described as an unsuccessful attempt to reach an arrangement with the lawmaker. The Democrat attended her first court hearing virtually last Wednesday. She insisted in a statement that the charges against her are “purely political” and “meant to criminalize and deter legislative oversight.”

“We’ve seen this administration come after and attack leaders for doing their jobs,” she told CNN Tuesday, referencing recent arrests of Newark Mayor Ras Baraka and a Wisconsin judge. “It’s political intimidation, and I will not be intimidated.”

McIver’s prosecution marks a rare occasion where a lawmaker faces charges for something other than a white-collar crime like fraud or bribery. It also further stresses the government’s separation of powers as Trump and his administration crack down on immigration.

“I think it’s overreach,” former federal prosecutor Neama Rahmani told Salon, arguing that the early May scrum between lawmakers and DHS officials was “relatively minor.”

Neither McIver’s office nor the Justice Department responded to requests for comment.

On May 9, McIver, along with fellow New Jersey Democratic Reps. Rob Menendez, Bonnie Watson Coleman and Baraka, visited the Delaney Hall detention center to inspect the new facility for oversight, which federal law allows members of Congress to conduct. The visit devolved into an altercation when they moved to arrest the Newark mayor, prompting McIver and Watson Coleman to attempt to shield him. The following day, Fox News posted a video provided by the Department of Homeland Security said to show McIver “shoving/elbowing her way past a DHS agent.” A video taken by NJ Spotlight News shows a federal officer shoving McIver around the same time as she attempted to reenter the facility, which aligns with McIver and Menendez’s account of the tussle.

A group of 10 former Republican members of Congress, led by former Reps. Mickey Edwards, Okla., and Claudine Schneider, R.I., said they “unequivocally reject” the charges against McIver in a statement Thursday.

“Rep. Mclver was present at the ICE facility as part of her official congressional duties,” the retired lawmakers said. “We believe this extreme response to the events of that day is unwarranted.”

In the criminal complaint against McIver, the government accuses her of objecting to Baraka’s arrest by yelling “Hell no!” and joining her colleagues in encircling the mayor in a “‘human shield’ effort to prevent [Homeland Security Investigations] from completing the arrest.” The complaint also alleges that McIver slammed her forearm into a uniformed HSI agent, attempted to restrain him and pushed an ICE officer.

Rahmani, now the president of personal injury firm West Coast Trial Lawyers, said that while he doesn’t believe the Justice Department should have filed the charges against McIver, the alleged offense does “fit within the four corners of the law.”

“It is a felony if there's any physical contact,” he said in a phone interview. “It's just not something that you typically see and, historically, there would be an exercise of prosecutorial discretion, not making a federal case out of something relatively minor.”

McIver also has a “pretty strong defense” in that she was conducting a legitimate oversight duty at the time of the altercation, Rahmani added.

Federal law authorizes legislators conducting congressional oversight to access “any facility operated by or for the Department of Homeland Security used to detain or otherwise house aliens.” The Constitution’s “speech and debate clause” also protects members of Congress from criminal prosecution for actions taken as part of their official duties.

Rahmani said that she may be able to argue that the prosecution is selective or political, a point that Trump himself and Hunter Biden raised during their respective cases, but would need to show that the prosecution is “for a constitutionally prohibited reason.”

In the end, Rahmani said he doesn’t expect the case to actually head to trial before a jury, with the charges against McIver dropped either by the Justice Department itself or the presiding judge.

But Barbara McQuade, a law professor at the University of Michigan and former federal prosecutor, told Salon that the best way to look at McIver’s prosecution is through the lens of the last four months of Trump’s presidency. Traditionally, the courts viewed the government with the presumption of regularity, the idea that the government acts in good faith and conformity with the law. In a moment when the administration is denying people due process and attempting to advance a theory that birthright citizenship does not apply to children with undocumented parents, the Justice Department is “losing that presumption of regularity,” she said.

“I think the Justice Department has earned the opposite of the benefit of the doubt,” she said in a phone interview. “It is cast with doubt, and that is because we have heard people like the head of the FBI, Kash Patel, and the president himself talk about how they're going to seek retribution and going to go after their rivals and their enemies.”

While McQuade said she believes the prosecution has “at least some appearance” of political motivation, she also sees McIver’s alleged encircling of the mayor and objection to his arrest as arising to probable cause that she violated the “impede portion” of the statute. Still, assessing the facts of what happened during the scrum is difficult because the available photos and videos depict the tussle after it began, she said.

On the other side, however, is the idea of “respect for other branches of government,” which the Public Integrity Section of the DOJ considers alongside uniformity and historical practice when deciding whether to file charges against public officials, McQuade said. The Justice Department is currently considering removing that check.

In all, she said her first reaction to the charges is skepticism. Whether the prosecution is “lawless” is a question she doesn’t have a strong answer for.

But the case is still “something to keep an eye on because it could very well be that this case ends … not with a bang, but a whimper,” McQuade added. Habba, for example, announced at the same time that the charges against Mayor Baraka had been dropped. “We will know whether they have the goods if they can show them at a jury trial.”