What happens when lawmakers break the law? US Representative LaMonica McIver (D-NJ) faces a three-count criminal indictment for her questionable conduct during a May 9 conflict at a Newark detention center. When Donald Trump faced criminal charges for allegedly exaggerating the value of his assets in financial filings, a widely heralded refrain was “No one is above the law.” Many Democratic lawmakers, however, have been skating on the edge of permissible conduct as if they don’t particularly believe that line. Representative McIver is skating on thin ice.
A Legal Review
Legal cases are decided by examining the relevant facts subject to rules of evidence, researching the laws relevant to the case, and applying the law to the facts. In this case, there is no question that McIver does not dispute being present at the scene, in what CBS News framed as “attempt[ing] to conduct federal oversight of the 10,000 bed detention center.” As tensions escalated, the New Jersey Congresswoman jostled with uniformed federal officers.
A sworn statement by a special agent employed by the Newark division of the Department of Homeland Security alleges that McIver and others attempted to block the arrest of Newark Mayor Ras Baraka for misdemeanor trespassing by creating a human shield, and that she “slammed her forearm into the body” of a DHS agent, “reached out and tried to restrain” that agent, “pushed an ICE officer” and “used each of her forearms to forcibly strike” them.
A federal grand jury in Newark issued a “true bill” permitting US Attorney for New Jersey Alina Habba to issue indictments against McIver for three federal offenses, two of which carry maximum penalties of eight-year prison sentences. This is not Donald Trump filing forms – these are serious criminal charges.
The Facts
McIver has not only denied guilt but also defiantly alleged impropriety by the US Attorney, a dangerous gambit for any defendant in ongoing criminal proceedings. Should she decide, with the assistance of counsel, to seek a plea deal, McIver will likely be dealing with Habba, the very person she’s accusing of impropriety. She did not hesitate to up the ante, however, by positioning a rather large chip on her shoulder, publicly declaring:
“The facts of this case will prove I was simply doing my job and will expose these proceedings for what they are: a brazen attempt at political intimidation … This indictment is no more justified than the original charges and is an effort by Trump’s administration to dodge accountability for the chaos ICE caused and scare me out of doing the work I was elected to do.”
The “facts of this case” are on clear video that corroborates the sworn affidavit and the grand jury’s finding of probable cause for criminal prosecution. Fellow New Jersey Congresswoman Bonnie Watson Coleman proclaimed that “nothing happened,” protesting that “If anything, we were pushed and shoved!” The video footage shows McIver elbowing officers and shoving a uniformed officer in front of her by jabbing him with her forearm. One does not need a law degree to see the hot water boiling for her. Political posturing does not generally sway juries tasked with ethically finding the truth.
The Law
The federal statute at issue, 18 U.S. Code § 111 (“Assaulting, resisting, or impeding certain officers or employees”), provides in pertinent part:
“Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties …
“… shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.”
Section 1114 covers “any officer or employee of the United States or of any agency in any branch of the United States Government … while such officer or employee is engaged in or on account of the performance of official duties.” Watching the video and reviewing the sworn testimony of an agent witness, it does not appear that Bonnie Watson Coleman’s TV testimony is going to carry any more water for McIver than her own unbelievable denials. Nor will a criminal trial rest on specious allegations that the US Attorney is Trump’s lackey.
I practiced criminal law for a number of years. Faced with a client who was guilty and admitted that fact, I was often commissioned to seek the best possible plea deal I could negotiate. If a client who, despite overwhelming evidence, stubbornly insisted on going to trial, I had no choice but to defend them as well as possible. But I always warned every client, even those with a strong case, that “going to trial is a dice roll. There are always risks, and if the jury finds against you, it becomes profoundly difficult to reverse their decision.”
McIver in the Hot Seat
LaMonica McIver is in that hot seat, not US Attorney Habba, who posted on X: “Today’s decision by the grand jury is the next step in a process that my Office will pursue to a just end.” The law applies equally to “whoever” interferes with a federal agent performing their duties, just as it would if McIver were arrested for shoplifting, driving drunk, or embezzling public funds. The video evidence is particularly damming.
She may find herself joined by other Democratic leaders who claim to stand for democracy while standing against law enforcement. US Senator Alex Padilla (D-CA) was removed from a press conference in Los Angeles on June 12 for what the Department of Homeland Security (DHS) labeled “disrespectful political theater.” Democrats are howling for an explanation, but DHS has provided one, saying: “Mr. Padilla was told repeatedly to back away and did not comply with officers’ repeated commands. @SecretService thought he was an attacker and officers acted appropriately.” It does not appear that Padilla was arrested, but refusing federal officers’ commands could be construed under the foregoing statute as “impeding or interfering” with lawful orders – he should be happy he was not charged criminally. Still, like McIver, he and his followers called the incident authoritarian persecution rather than legitimate prosecution.
Justice must be served – and when people break the law, they must be held accountable. That goes double for public servants, like the members of Congress. Such public stunts never seem to stop some politicians. Still, McIver, at least, may soon pay the price for making her point.
