“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
The Trump administration is prosecuting a Democratic member of Congress for her oversight visit to a federal immigration detention center.
What happened in this case?
LaMonica McIver, a Black Democratic member of Congress from New Jersey, went with several other Members to conduct an unannounced oversight visit to Delaney Hall, a federal immigration detention center within the jurisdiction of the House Homeland Security committee on which they serve. Newark mayor Ras Baraka joined them, but was told to leave or face arrest.
The three representatives protectively encircled the mayor, but government agents pushed through to make the arrest. The members then pushed through several agents to return to a secured area and conducted their oversight inspection. Prosecutors indicted McIver on three criminal charges, for “slam[ing] her forearm” into and trying to physically restrain one agent trying to arrest the Mayor, pushing past and striking another agent as she was returning to a secured area for her inspection and, based on these and similar acts, interfering with federal agents. She moved to dismiss the indictment, which the lower court denied, and she appealed to the Third Circuit.
All three judges on the appellate panel -- Trump judge Stephanos Bibas, Biden judge Cindy Chung, and Clinton judge Thomas Ambro—agreed in August that the district court should reconsider the third count and, in particular, whether the conduct alleged included “legislative acts” and whether it can stand “when eliminating such protected conduct.” They also agreed that count one does not charge McIver for any act that is “legislative in nature” and that it can proceed. But Bibas and Chung also ruled that it was permissible for the government to proceed on the second charge relating to McIver’s effort to return to a secured area to proceed with oversight. See US v McIver.
Why did Judge Ambro partially dissent?
Judge Ambro strongly dissented from the ruling upholding the indictment of Rep. McIver in connection with her effort to return to a secured area of the center in order to conduct oversight. At issue, he contended, was the principle that the Executive may not “wield its considerable discretion” over prosecutions in “retaliation against disfavored legislators” and their conduct. In particular, he noted, the Executive Branch may not use criminal prosecution “to punish legislators for their oversight” activity. That is precisely what he recognized that Rep McIver was concerned about. Judge Ambro maintained that the ruling on the second count should be vacated and the case remanded for further fact-finding on whether Rep McIver simply made “incidental contact” with the officer “in an effort to re-enter” the area she inspected. He also maintained that the case should be remanded for discovery as to whether this was a case of improper “vindictive prosecution.”
Why is the decision harmful?
The decision made possible by Trump judge Bibas obviously harms Rep McIver, who faces up to 17 years in prison if convicted. The ruling also has broader implications. As she pointed out, the decision clearly “chills” congressional oversight authority and “emboldens the Trump Administration” in its “persecuting our most vulnerable communities.” The case also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.