Attorneys for U.S. Rep. LaMonica McIver (D-NJ) argued Wednesday that the congresswoman’s conduct during an anti-ICE protest was protected by free speech, while also downplaying the physical contact at the center of the case by saying it “wouldn’t have drawn a flagrant foul in the Knicks-Spurs game.”
McIver faces a potential sentence of up to 17 years in prison over a May 2025 confrontation outside Delaney Hall, an ICE facility in New Jersey. Prosecutors allege she “slammed” her forearm into an agent and attempted to grab him as Newark Mayor Ras Baraka was being arrested on a trespassing charge that was later dropped.
According to Politico, McIver and her legal team appeared before a federal appeals court in Delaware, pressing a three-judge panel to throw out the case. Her lawyers argued that she is shielded by free speech protections and legislative immunity, and claimed the prosecution is politically motivated by the Trump administration.
Defense attorney Paul Fishman told the panel that the charges should not stand, contending that members of Congress are entitled to a form of immunity comparable to the qualified immunity protections often available to police officers.
“She wouldn’t have drawn a flagrant foul in the Knicks-Spurs game,” Fishman argued, suggesting that the alleged contact did not rise to the level of a criminal assault.
Judge Stephanos Bibas, who was nominated by President Trump, appeared doubtful of Fishman’s claim that McIver could rely on qualified immunity as a defense.
Even so, Bibas acknowledged that prosecutors may face an uphill battle in persuading a jury and suggested the Department of Justice was taking a risk by pursuing the case.
Judges Cindy Kyounga Chung, a Biden nominee, and Thomas Ambro, a Clinton nominee, also indicated that it is unusual for criminal charges to be brought against a lawmaker over this kind of physical contact.
The majority of cases against members of Congress are tied to corruption and bribery.
Ambro even questioned whether the appellate court should toss the case since it appeared the DOJ was trying to “get a pound of flesh” and embarrass McIver with a trial.
Outside court after McIver said “the point of it all is cruelty … the process is the pain for them, and they enjoy that, and they’re watching me, a new member of Congress, go through that.”
The May 9, 2025 dust-up happened as the Democratic mayor, Baraka, was trying to join a group visiting Delaney Hall for a congressional oversight visit at the facility as people were protesting. McIver and the demonstrators surrounded Baraka in forming a chaotic scrum around him, video showed.
At one point, McIver placed her left elbow and then her right elbow into an officer and pushed but it was unclear if it was intentional or incidental.
McIver has pleaded not guilty to three charges claiming she assaulted, resisted and impeded the officers during the scuffle.
