Lawyers for Democratic U.S. Rep. Lamonica McIver argued in federal court Tuesday that charges stemming from a scuffle at an immigrant detention center in Newark in May should be dismissed because she was fulfilling her Congressional oversight duties and because the government was engaged in selective enforcement.
With McIver supporters demonstrating outside the courthouse, U.S. District Court Judge Jamel Semper said he would take time to weigh the arguments and issue a written decision on the defense’s pre-trial motions. Semper did not say when that would be.
Lawyers said a decision could be weeks away, after the judge gave prosecutors from the U.S. Attorney’s Office in Newark a week to turn over any remaining video footage of the incident that would not jeopardize security at the Delaney Hall detention center. The judge also gave prosecutors two weeks to provide any policies for crowd control or the handling of congressional visitors to the facility.
“These are interesting and complicated legal issues,” McIver’s lawyer, Paul Fishman, summed up after the hearing. “This prosecution should be dismissed on the grounds that these charges are based on selective prosecution and because the congresswoman is immune. But the judge has 200 pages of briefs on this case from both sides.”
Fishman is a former U.S. Attorney for New Jersey who once headed the office now prosecuting his client.
McIver was indicted on June 10 on three counts of assaulting, resisting and obstructing federal officers.
The indictment stems from a May 9 scuffle just outside the security fence at Delaney Hall, a privately run, federally contracted detention facility in Newark. She and others were trying to prevent the arrest of Newark Mayor Ras J. Baraka on a trespassing charge that was dropped 13 days later.
McIver and fellow New Jersey House Democrats Rob Menendez and Bonnie Watson Coleman had gone to Delaney Hall that day to conduct a congressional oversight inspection following assertions by Baraka that it lacked a valid certificate of occupancy.
In an Aug. 15 motion, and again in court Tuesday, McIver’s attorneys argued that the indictment criminalizes conduct that occurred while she was performing official legislative duties.
However, the lead federal prosecutor in the case, Assistant U.S. Attorney Mark McCarren, told the judge Tuesday that McIver’s actions just outside the facility’s security gate were not part of her oversight visit.
Bodycam footage released last month appears to show that the federal agent who arrested Baraka had been speaking on the phone with and acting on instructions from a deputy U.S. Attorney General to arrest Baraka.
And Fishman told the judge that the mayor’s arrest was part of a broader effort to block the oversight visit to the facility, which is operated by its Florida-based owner, the GEO Group, under a contract with the U.S. Immigration and Customs Enforcement agency, or ICE.
Whatever the government’s intention may have been that day, the judge questioned Fishman’s assertion that McIver could do whatever she wanted while carrying out her official duties.
“Is all the conduct that flows from that protected activity immune simply because she went to that facility to conduct legislative activity?” Semper said.
Lawyers also debated the issue of selective enforcement.
The defense, which includes co-counsel Lee Cortes, argued that the government sought to indict the Democratic congresswoman based on her political party and her opposition to the crackdown on undocumented immigrants by the administration of Republican President Donald Trump.
Fishman cited the Trump administration’s pardoning of convicted Jan. 6, 2020 Capitol rioters as an example of egregious violence being excused because the perpetrators were aligned with the president.
But prosecutors noted on Tuesday that charges had not been brought against the two other Democratic House members who accompanied McIver on the oversight visit.
McIver’s lawyers had also complained of press releases and other public statements about her conduct by Trump administration officials, which her lawyers said were defamatory and improperly outside the scope of the official allegations against her.
McCarren assured the judge that several related press releases had been taken down. But the judge admonished McCarren to use whatever “influence” he had with federal officials in Washington to scrub from online sites or curb any other such statements.
Supporters outside the Frank R. Lautenberg Post Office and Courthouse on Tuesday cheered McIver and others who had been inside for the hearing, including Baraka, Menendez and Watson Coleman.
McIver, a former Newark City Council president, represents New Jersey’s 10th Congressional District, after winning a special election last year to fill a seat vacated by the death of Rep. Donald Payne Jr. She told supporters she would not be intimidated by the charges.
“This is not going to stop me from doing my job,” McIver said. “I’m not going to stop holding this administration accountable.”
