IYCMI: McIver Files Briefs, The Atlantic Asks “Does the Constitution Protect This Congresswoman From Trump?”

WASHINGTON, D.C. – In case you missed it, yesterday, as Congresswoman LaMonica McIver (NJ-10) and her legal team filed a brief in support of her appeal with the Third Circuit Court of Appeals, The Atlantic published an article on the major constitutional questions at stake in Trump’s Department of Justice’s case against McIver.

The article focuses on legislative immunity as a means of protection from prosecution meant to “dissuade members of Congress from carrying out oversight that the administration dislikes.”

Below are excerpts from the reporting. The full piece is available here.

On the purpose of legislative immunity: 

• The ideal of speech-or-debate immunity derives from high-minded concerns by the Founders over the separation of powers. The “fundamental purpose” of the speech-or-debate clause, the Supreme Court wrote in 1972, is “freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.”
• Framed this way, McIver’s case seems like a near-perfect example of what legislative immunity is meant to defend against: political pressure by an executive seeking to dissuade members of Congress from carrying out oversight that the administration dislikes.

On the unique vulnerability of members of Congress and what they face in standing up to Trump: 

• This captures a paradox many Democratic members of Congress surely know all too well: Squaring off against a vindictive president, lawmakers are uniquely empowered and protected, but at the same time—because of their prominence—uniquely vulnerable. Congressional ethics restrictions prohibit McIver from accepting pro bono legal help and place limits on her ability to fundraise for her own defense. A recent profile in The New Yorker reported that, as of December, her legal expenses had risen to close to $1 million—money that will have to come out of her reelection campaign. Other Democratic members of Congress, spooked by McIver’s prosecution, have taken out liability insurance.

On where the case fits into the broader context of ICE’s over reach and Trump’s ongoing power grab: 

• McIver’s case reflects both President Trump’s aggressive tactics on immigration and the broader dynamics between Trump and Congress: a vindictive executive and a struggling legislative branch yet to find its footing in a legal system tilted in favor of presidential power. Trump has ignored congressional budgetary outlays, attempted to shut entire congressionally mandated agencies, and treated House and Senate hearings with contempt. But the McIver case represents his most sustained attack on an individual lawmaker.

On the outsized influence of Trump at DOJ as it relates to the case: 

• Trump’s power over the Justice Department shadowed the incident from the beginning. Body-camera footage shows an ICE agent announcing the plan to arrest the mayor “per the deputy attorney general of the United States,” an unusual and disturbing level of direct involvement for a high-level official. The U.S. Attorney’s Office for the District of New Jersey, under the leadership of Trump’s former personal lawyer Alina Habba, filed charges against Baraka for stepping onto land owned by a private prison—only to dismiss them shortly afterward. Habba then unveiled a new case against McIver.

As the article notes, on Monday evening, McIver and counsel filed a brief that argues that the Trump Department of Justice cannot prosecute McIver for doing her job, nor can it selectively prosecute her because of her opposition to the administration’s mass deportation agenda.

McIver is appealing the decisions by the district court, declining to dismiss the case that was filed against her by then-interim U.S. Attorney, and Donald Trump’s former personal lawyer, Alina Habba.

McIver continues to fight to protect her constitutional and statutory authority to oversee Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS), and the rest of the executive branch.

For additional information on the upcoming briefing schedule and oral arguments please contact Hanna.Rumsey@mail.house.gov