Rep. LaMonica McIver is accused of assaulting officers on May 9 as they tried to arrest Newark Mayor Ras Baraka at the Delaney Hall migrant jail in Newark. (McIver photo by Dana DiFilippo | New Jersey Monitor)
Federal prosecutors are asking a judge not to throw out an indictment accusing Rep. LaMonica McIver of assaulting federal officers during a scuffle outside a migrant jail in Newark in May.
McIver’s claims that she is the victim of selective prosecution are “little more than ‘whataboutism,’” her allegation that federal authorities ignored the actions of Jan. 6 rioters also accused of assaulting officers is “nonsensical,” and her argument that she is being prosecuted for constitutionally protected actions is contrary to both common sense as well as case law, prosecutors say in a new court filing made public Monday.
They also refute claims by McIver, a Democrat, that federal authorities are to blame for creating chaos on the day in question, when agents moved to arrest Newark Mayor Ras Baraka and, authorities allege, McIver assaulted officers during the ensuing fracas.
“McIver, as a Member of Congress, was perhaps better situated than most to de-escalate the situation given her powerful position, but instead chose to heed the unidentified male who goaded the crowd to ‘circle the mayor’ … in an obvious call to impede the Mayor’s arrest,” the filing says.
Prosecutors’ filing — a response to McIver’s motions to dismiss the case — does not shed much new light on what they claim transpired on May 9, the day of Baraka’s arrest. But it does confirm a claim from a recent McIver filing that the order to arrest Baraka, a Democrat, came from the deputy attorney general of the United States, Todd Blanche. Federal prosecutors dropped their trespassing charge against Baraka mere days later.
In August filings seeking to dismiss the case, McIver’s attorneys argued that the indictment omits key details from that chaotic encounter, that she is being singled out for political reasons, and that she cannot be charged for official acts under the U.S. Constitution’s speech or debate clause, which limits when lawmakers can be prosecuted for carrying out official duties. They also claimed that the U.S. Department of Justice’s dismissal of dozens of cases targeting Jan. 6 rioters who had also been charged with assaulting federal officers shows federal prosecutors are singling her out improperly.
But prosecutors noted that the Jan. 6 rioters were pardoned by President Donald Trump, meaning prosecutors were required to drop their charges.
“The pardons required the dismissal of the then-ongoing January 6 prosecutions without any inquiry into the exercise of prosecutorial discretion. That makes the January 6 Defendants not similarly situated to McIver. McIver’s selective prosecution claim fails for this reason alone,” the filing reads.
McIver’s lawyers have said the Constitution does not allow prosecutors to distinguish “between those it chooses to charge and those whose behavior it chooses to ignore.” Prosecutors’ new filing says the cases of the Jan. 6 rioters were not ignored.
“There can be little doubt that the investigations of the January 6 Defendants involved the dedication of huge amounts of resources both in terms of manpower and finances,” it says.
Regarding McIver’s claims that she is being targeted because she’s a Democrat, prosecutors said she fails to provide any proof for this claim, saying she’s relying on “out-of-context statements” from the Trump administration. Prosecutors note that Trump, when asked about McIver’s charges in May in an exchange McIver cited in her motions to dismiss, claimed not to know who she is.
“Rather than evidence of discriminatory intent on the part of the President, this exchange shows that the President had no involvement in the charging decision and perhaps no idea about McIver’s political affiliation until the reporter disclosed it,” their filing says.
Prosecutors also scoffed at McIver’s claim that her actions on May 9 were the constitutionally protected actions of a lawmaker, a claim McIver has made publicly numerous times. Just because McIver was allowed to visit the migrant jail, Delaney Hall, for an oversight visit doesn’t mean she was allowed to do anything she wanted while she was there, they said.
“Imagine, for example, that McIver, while touring Delaney Hall, smuggled in contraband that she surreptitiously slipped to a detainee. Such conduct would violate a number of federal and state statutes, and it would certainly have no legitimate legislative purpose. But under McIver’s theory of immunity, she would be immune from prosecution because it occurred during an otherwise legitimate legislative act,” Monday’s filing says.
The new filing also defends acting U.S. Attorney Alina Habba, a personal lawyer to Trump, from allegations that she told a podcaster she’d use her office to help “turn New Jersey red.” McIver cited those comments in her motions to dismiss, but Monday’s filing says Habba’s comments have been taken out of context.
“She was responding to a question premised on the notion that ‘good governance’ could continue a voting trend that was potentially favorable to Republicans. In response, Ms. Habba essentially agreed that effective law enforcement through the implementation of the Administration’s policies would likely inure to the benefit of Republicans, a notion that makes logical sense. At no point did she advocate for the targeting of Democrats, and she limited her discussion to priorities in law enforcement that were not political in nature,” the filing says.
McIver was never mentioned during the podcast, prosecutors noted.
GET THE MORNING HEADLINES.
