Posts

Judge Jamel Semper Mostly Denies LaMonica McIver’s Bid to Dismiss Prosecution

/6 Comments/in /by

Judge Jamel Semper has denied most of LaMonica McIver’s bid to throw out her prosecution, denying her selective and vindictive prosecution claim, as well as a request to obtain more discovery, outright, and dismissing her legislative immunity claim on two of three counts.

Given the precedent, Semper’s ruling on the selective and vindictive prosecution claim is not surprising. What is surprising, however, is the presumption of regularity Judge Semper affords DOJ (and ICE) even after he has had to order DOJ to whack-a-mole remove all the false statements Tricia McLaughlin keeps posting about McIver. He makes no mention, for example, of the evidence showing Todd Blanche ordered Ras Baraka be arrested even though he was no longer on Delaney Hall property.

His analysis of the legislative immunity, however, is less convincing.

He dismisses McIver’s claim that she was present at Delaney Hall for a legislative function — the government concedes the inspection itself is legislative — to an entire trip to DC, some of which did not involve legislative acts.

Defendant further contends that her exercise of congressional authority “comfortably shows that her presence at Delaney Hall was ‘manifestly legislative activity.’” (Mot. I at 17) (emphasis added). The case law does not support Defendant’s broad interpretation. The Third Circuit’s holding in Lee is instructive, where the court declined to find that the entirety of a legislator’s fact-finding trip was protected by the Speech or Debate Clause. See 775 F.2d at 522. There, a legislator from the Virgin Islands argued that the conversations and meetings that took place during a trip he took to New York and Washington, D.C. were entitled to immunity because the purpose of his trip was for legislative fact-finding.19 See id. The Court disagreed. In rejecting his argument as too broad, it found that for “conversations to trigger the protection of legislative immunity, they must have involved legislative fact-finding.” Id. The Court wrote that “it is Senator Lee’s purpose or motive that will determine in part whether the trip was a legislative act at all” and ordered the district court to examine “which acts were proper legislative acts and which were personal and non-legislative acts.” Id. at 522, 524.

19 The defendant in Lee had received approval from the President of the Virgin Islands legislature for a legislative fact-finding trip to New York and Washington, D.C. to conduct meetings and discuss such official legislative business as consumer affairs, interior matters and issues involving transportation. See 775 F.2d at 517. An investigation by law enforcement later revealed that many of the meetings with government officials he claimed took place did not in fact happen. See id.

But before and after the fracas, McIver was simply trying to do that inspection. The kidnapping of Baraka was ICE’s response to that.

Even with Count Two, which criminalizes McIver’s response after an ICE guy grabbed her, Semper dodges by saying the record about her motive to return onto Delaney Hall premises where she conducted the inspection she originally came for remains uncertain. He does so even though he describes the ICE guy initiating physical contact.

Surveillance video shows that as Defendant and Representative-2 tried to reenter the facility through the Security Gate, V-2 blocked Defendant from entering by forcibly pushing her back into the public parking lot, and Defendant responded by pushing V-2 in return. (Id., 1:28:08-21.) Defendant was only able to reenter the facility when Representative-2 wrapped his arms around her and pulled her through the Security Gate. (Id., 1:28:15-24.) Defendant and the Representatives were subsequently allowed to conduct their congressional oversight inspection of Delaney Hall later that day.10 (Mot. I at 11.)

[snip]

As Defendant attempted to reenter the facility through the Security Gate, V-2 forcibly pushed Defendant back into the public parking lot before Defendant pushed V-2 in response. 25 (Id., 1:28:10-1:28:20.) The indictment alleges Defendant “pushed past V-2 while using each of her forearms to forcibly strike V-2 as she returned inside of the secured area of Delaney Hall.” (Ind., Count 2 ¶ 3.) Defendant successfully reentered the facility after Representative-2 wrapped his arms around her and pulled her through the Security Gate, as the agents kept protestors from entering the Security Gate. (Def. Ex. A, 1:28:20-1:28:25.) Following her reentry into the secured area of Delaney Hall, Defendant and the Representatives were allowed to conduct their inspection of the facility. (Mot. I. at 11.)

25 Surveillance video reveals a dynamic situation where V-2 struggled through a crowd of hostile protestors before encountering Defendant at the Security Gate. (See generally Def. Ex. I.) The Court makes no finding on V-2’s intent when he forcibly pushed Defendant as she lawfully tried to reenter the Security Gate. While the inchoate record does not allow for a determination of Defendant’s predominate purpose upon reentry into the Security Gate, it is axiomatic that Defendant’s statutory right to enter and inspect the facility could not be infringed, even if mistakenly, by V-2. Upon completion of the record, Count Two will be subjected to scrutiny.

[snip]

Discovery is ongoing, and the parties are in process of reviewing two hours of complete video from the inspection. 26 The facts surrounding that inspection are relevant to Defendant’s motive in reentering the facility in Count Two, and whether her intent was related to her oversight duties. 27

26 The Government is in the process of turning over the complete set of surveillance footage from the Members’ tour, which took place after the subject incident. (See Tr. at 20:1-14.)

27 A Member of Congress may only “be prosecuted under a criminal statute provided that the Government’s case does not rely on legislative acts or the motivation for legislative acts.” Helstoski, 442 U.S. at 487-88.

He’s describing law enforcement assaulting a member of Congress as she tries to do her job and that doesn’t qualify for legislative immunity?

Likewise, Semper dismissed her claim that Trump v. US stands for the principle that if Trump’s motives while attacking Congress cannot be scrutinized, then hers cannot either with no consideration that Speech and Debate has more Constitutional protection than Trump’s Executive authority.

Finally, Defendant suggests that inquiry into Defendant’s motives “would raise significant separation-of-powers concerns considering Trump’s holding that courts evaluating claims of presidential immunity emphatically ‘may not inquire into the President’s motives.’” (Mot. I. at 20) (emphasis in original) (quoting Trump v. United States, 603 U.S. 593, 618 (2024)). Defendant asks this Court to extend the Supreme Court’s ruling on presidential immunity to the area of legislative immunity. But these are two separate immunities applicable to two separate branches of government, scrutinized under two separate legalstandards. Article I of the Constitution confers legislative immunity for speech or debate, which the courts have interpreted and developed through case law, while the presidential immunity doctrine is a court-created doctrine derived from the executive’s Article II powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); see also Nixon v. Fitzgerald, 457 U.S. 731 (1982). Moreover, the question of whether the President engages in “official action” is a distinct inquiry from whether a Member of Congress was engaging in a legislative act. Trump, 603 U.S. at 617.

To be fair, he can afford to err on the side of conservatism. This challenge (but not the selective and vindictive one) is entitled to interlocutory appeal. So the Third Circuit — with Emil Bove safely installed — will review this before any trial.

11 The Court’s decision regarding Defendant’s immunity under the Speech Clause is subject to immediate appeal under the collateral order doctrine. See Helstoski v. Meanor, 442 U.S. 500, 506– 08 (1979). See also United States v. McDade, 28 F.3d 283, 288 (3d Cir. 1994) (“[W]e have jurisdiction to entertain the defendant’s claim that the Speech or Debate Clause requires dismissal of the entire indictment or particular charges contained in the indictment.”).

And by then, McIver may have a more fulsome understanding of what was happening elsewhere at the facility.

As of now, though, Judge Semper has ruled that immunity doesn’t attach when ICE goons stage a kidnapping in the middle of an attempt to exercise legislative oversight.

That seems like a problem.

Share this entry

The IG Firing that May Matter: FHFA

/9 Comments/in /by

Yesterday, Reuters reported that the Inspector General for FHFA, which oversees Fannie and Freddie, got fired by the White House yesterday.

The ouster of Joe Allen, FHFA’s acting inspector general, follows the agency’s director, Bill Pulte, becoming an outspoken voice in support of the Trump administration. Across the government, the Trump administration has so far fired or reassigned close to two dozen agency watchdogs, who police waste, fraud and abuse. It has also defunded the group that supervises those offices.

The report attracted little notice; Reuters even notes that this is just one among dozens of IG firings. But this firing may blow up sooner rather than later.

That’s because Allen was preparing to share information with EDVA prosecutors.

Lindsey Halligan, the interim U.S. attorney for the Eastern District of Virginia who was hand-picked for the job by Trump, subsequently indicted James after her predecessor declined to do so, citing a lack of evidence.

Allen received notice of his termination from the White House after he made efforts to provide key information to prosecutors in that office, according to four sources. The information he turned over was constitutionally required, two of them said, while a third described it as being potentially relevant in discovery.

His ouster also came about as he was preparing to send a letter to Congress notifying lawmakers that the FHFA was not cooperating with the inspector general’s office, three of the sources said. These individuals said the FHFA director would typically have been notified of such a letter. Reuters was unable to independently determine whether Pulte was informed.

By the end of the day, the Loaner AUSA in the Letitia James case had submitted a letter stating they would not comply with Judge Jamar Walker’s order, issued during the arraignment, that they turn over evidence on selective and vindictive prosecution.

A grand jury returned a two-count indictment against Defendant on October 9, 2025. Doc. 1. Defendant’s Initial Appearance and Arraignment occurred on October 24, 2025. Doc. 24. At that hearing, the Court ordered Defendant to file her motion to dismiss based on vindicative/selective prosecution by November 7, 2025. Hear’g Tr., 23:18-20. It also indicated its expectation “that the discovery associated with this potential first motion needs to be frontloaded . . . .” Id. at 23:14-16. Consistent with this Court’s instruction, the Government provided newspaper articles to Defendant’s counsel. Defendant’s counsel also indicated that he intends to request substantial discovery from the Government.

The Government provides notice of its intent not to provide vindictive/selective prosecution-related discovery prior to Defendant’s motion because the law does not “allow[ ] a defendant to have discovery on the government’s prosecutorial decisions [until] the defendant . . . overcome[s] a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct. The standard is a ‘rigorous’ one.” Wilson, 262 F.3d at 315 (quoting Armstrong, 517 U.S. at 468). Until Defendant meets her threshold requirements, the Court’s instruction to produce any vindictive/selective prosecution-related discovery is premature.

The letter specifically describes that Rule 16 discovery does not include internal government reports made by government agents in connection with the case — something that would be covered by any review that FHFA’s IG did of this and other Bill Pulte referrals.

FED. R. CRIM. P. 16(a)(2) underscores the limitation to “defense” as it “exempts from defense inspection ‘reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case.’”

The filing is not dissimilar from a letter prosecutors sent in the LaMonica McIver case, telling McIver’s attorneys they would not abide by Judge Jamel Semper’s August 26 order to meet and confer about selective and vindictive evidence.

The Government has reviewed your letter of September 3, 2025 detailing the specific discovery requests sought in conjunction with your client’s motion to dismiss based on selective prosecution and enforcement, and vindictive prosecution. As we discussed during our Zoom call yesterday, we believe that the discovery sought in your September 3rd letter is not covered by Rule 16. Discovery in support of selective prosecution and selective enforcement claims is not provided as a matter of right, and we do not believe your client has satisfied the applicable threshold evidentiary showings required by Amstrong/Bass and Washington to compel discovery. We therefore believe that Judge Semper should first rule on your client’s motion for discovery, which we will oppose, and we will revisit the discovery demands outlined in your letter should the Court grant her request.

And while Semper ruled that prosecutors have to provide McIver the communications from Delaney Hall to her, they otherwise appear to have gotten away with this stance.

But two things may lead to a different outcome here.

First, by firing Allen, the White House has made the firing itself an issue, not unlike the Erez Reuveni firing did in the Kilmar Abrego case. At the very least, this news report will add to the bases to claim vindictive prosecution.

But also because Attorney General James shares an attorney, Abbe Lowell, with Lisa Cook. No one has charged Lisa Cook yet — maybe they never will; but nevertheless she has a date at the Supreme Court in January. And that may have the effect of putting several issues before the Court at once (the lawsuit by a bunch of Inspectors General fired at the beginning of Trump’s term is stayed pending all these other cases).

None of that’s to say that SCOTUS will reverse course on letting presidents (or at least this one) fire everyone put in place to exercise some oversight.

Share this entry

“She Wants to Grab Him:” The Premeditated Detention of Ras Baraka

/31 Comments/in /by

Judge Jamel Semper in the LaMonica McIver case has released the videos associated with her motion to dismiss for congressional immunity. 

Video F strongly suggests that someone female ordered Ricky Patel — the person who ultimately arrested Ras Baraka — to “grab” the Mayor even before he was told he was trespassing. 

0:45, Ricky Patel says, “I’m going to walk right to the Mayor now.”

1:06 of Video F, Ricky Patel says, “you know me, I’m not saying no to shit.”

At 2:14, someone else says, “She wants to grab him.”

Only after that did Patel say, “How did the Mayor get in here?” after which a DHS employee made a baseless claim about how it happened.

In less than 30 seconds after engaging the Mayor, Patel threatened to arrest him for trespassing, in response to which one of Baraka’s aides said, “we got invited in,” which DOJ now concedes to be true.

In the middle of it, Patel gets a call. He sees who is calling. At first he doesn’t answer. Then seconds later he answers the call. After Patel gets off the phone, he calls Bonnie Watson Coleman, “Ma’am,” after which she corrects him, “Congresswoman.” When Patel orders Baraka to put his hands behind his back, Watson Coleman says “we’ll be your eyes and ears.” Both Congresswomen say, “calm down.”

Exhibit B is the one that shows Patel ordering others to prepare to arrest Baraka, “even though he stepped out.” Meanwhile, one of the ICE officers is arming himself, and another one mocks him for it. Another asks, “they really wanted to just come here to see a tour of the facility?”

1:16: I am arresting the Mayor, so.

1:16: 30: I got it, I got it. We’re taking him right now.

1:16:50: I’m going to take him right now.

[Hangs up phone]

1:16:55: Okay, even though he stepped out, I’m going to put him in cuffs. 

1:17: Guys, listen to me. We’re going to walk out of the gates. I’m going to place the Mayor in handcuffs. We are arresting the Mayor, per the Deputy Attorney General of the United States. Anyone who gets in the way, I need you guys to get me a perimeter. 

1:17:30: I already told him on camera that he was under arrest, we’re going to place him under arrest.

[They arm themselves some more.]

1:20, after the arrest, McIver: You assaulted me. I am filing a complaint.

Even before anyone from ICE engaged with the Mayor, “She” ordered Ricky Patel to “grab him.” 

Share this entry

LaMonica McIver Prepares to Hoist Todd Blanche with His Own Petard

/51 Comments/in /by

For months, I’ve been anticipating the possibility that Trump’s politicized prosecutions will backfire, both by empowering the political martyrs they create and by exposing their own corruption.

I’m interested in this for two reasons: first, the possibility that these prosecutions will backfire, not just by creating sympathetic political martyrs, but also by further exposing Bondi and her top aides as liars violating legal ethics.

A package of filings from Congresswoman LaMonica McIver submitted last night suggests that may soon happen.

She has filed four motions:

Two crucial details lie behind all of them.

First, according to Body Cam footage provided in discovery (and available to Judge Jamel Semper), after Newark Mayor Ras Baraka left the Delaney Hall facility in response to Ricky Patel’s order to do so, the Deputy Attorney General of the United States instructed Patel (listed as V-1 in all the filings) to arrest the Mayor.

Allegation: After the Mayor complied with HSI’s instructions to “leave the secured area,” agents placed him under arrest “in the unsecured area.” Indictment at 2-3.

Evidence: After a phone call, [Ricky Patel] announced a decision to arrest Mayor Baraka: “I am arresting the mayor . . . even though he stepped out, I am going to put him in cuffs . . . per the Deputy Attorney General of the United States.” Ex. B at 1:16:27-1:17:35. Meanwhile, the Members— who were still being prevented from entering the facility—returned to the entrance gate where they learned that the agents were changing course and renewing their plan to arrest the Mayor on baseless charges. Ex. A at 1:26:40-1:26:50; Ex. H, JR Axon Body Camera Arrest.mp4, at 00:30-00:40.

And, according to DOJ’s discovery response to McIver’s initial discovery request, Todd Blanche is signing off on correspondence in this case (possibly because Alina Habba is not a proper US Attorney).

Congressional immunity

Start with the immunity filing. After laying out her election last year (which she notes was a landslide, so let’s hope Trump sees this), McIver describes how starting on her third day in office, she prioritized oversight of immigration matters, with a town hall, a visit to a different detention facility, a letter to Kristi Noem, and a meeting with ICE. She then describes how the video produced in discovery captured her (and Rob Menendez — whose father’s earlier prosecution is the standard for Speech and Debate immunity in the Third Circuit — and Bonnie Watson Coleman) repeatedly describing their visit as congressional oversight.

Body Cam video captured them identifying theirs as a congressional oversight visit when they entered the facility. (This declaration describes the source of each video.)

Allegation: Count One alleges that on May 9, 2025, Congresswoman McIver and her congressional delegation “arrived at Delaney Hall allegedly to conduct a congressional oversight inspection.” Indictment at 1.

Evidence: Representatives McIver, Watson Coleman, and Menendez identified themselves as Members of Congress, explained they were there to conduct congressionally authorized oversight, and asserted their “right to look at the facility” and inspect its “safety, health, [and] services.” See Ex. B, CD Axon Body Camera Pre and Arrest.mp4, at 1:34-2:08.

Other video captured them questioning GEO employees as part of that oversight, while they were made to wait for an hour.

Allegation: The congressional delegation “entered the secured area and proceeded to an interior reception area.” Indictment at 2.

Evidence: The Members were told to remain in that small space for about an hour, during which they were denied access to the facility despite their repeated assertions of statutory authority. Nevertheless, the Members spent that hour pursuing their oversight mission, in part by questioning employees about the facility and its operations. During this time, unbeknownst to the Members, ICE was mobilizing its forces: high-level officials of ICE and Homeland Security Investigations (“HSI”) reported to the facility; munitions-filled vehicles took formation in its secured parking lot, and approximately 15 armed agents assembled just inside the gates. Ex. B at 6:40-13:30, 16:30-17:23, 20:09-35:14; Ex. A, NEPTZ.avi, at 23:00-23:15, 29:40-29:50, 40:50-41:05; Ex C, Axon_Body_4_Video_2025-05- 09_1418_D01AA954X.mp4, at 00:30-00:44; Ex D, Axon_Body_4_Video_2025-05- 09_1418_D01AA942W.mp4, at 00:37

More video captured McIver citing the law permitting members of Congress to conduct such oversight as ICE started its attack on Baraka.

Allegation: The “Congressional Delegation overheard this conversation and [] protest[ed].” Indictment at 3.

Evidence: Arriving by the Mayor’s side, Congresswomen McIver and Watson Coleman reprimanded the agents for “creating a problem” that did not exist. Congresswoman McIver reiterated that the agents had kept them waiting for “over an hour,” in blatant violation of federal law, and repeated, “We are here to do our oversight visit.” Congressman Menendez summed up the absurdity of the situation the agents had created: “You have an unarmed Mayor of the largest city in the state, and you have two dozen people out here and cars barricading us? This is an act of intimidation and you know it.” Ex. F at 4:32-5:58.

More video describes Patel — one of the purported victims — conceding the legality of the presence of the Members of Congress.

Allegation: An HSI agent, identified in the indictment as “V-1,” explained that “members of Congress had lawful authority to be in the secured area of Delaney Hall, but that” the Mayor “did not.” Indictment at 3.

Evidence: Although the indictment otherwise ignores the oversight context, V-1 verified the Members’ lawful authority, explaining, “congressmen are different, congresswomen are different.” Ex. F at 7:04-7:12.

Video captured the members identifying themselves as such when the melee ensued.

Allegation: As agents moved in to arrest the Mayor, Congresswoman McIver “hurried outside towards the agents” as someone “yelled ‘circle the mayor.’” Indictment at 3. Congresswoman McIver then “placed her arms around” the Mayor. Id.

Evidence: ICE agents, heavily armed and most of them masked, rushed out of the gate to arrest the Mayor where he was on public property surrounded by reporters, his staff, and members of the public. The Members walked through the gate at approximately the same time. Ex. A at 1:26:50-1:26:56. As a crush of over a dozen agents descended on the Mayor, a man called out to “circle the Mayor,” and the Members coalesced around him, holding one another’s arms to remain upright in the crowd. Ex. A at 1:26:50-1:27:08; Ex. I, AG Axon Body Camera Arrest.mp4, at 00:47-00:55. Agents and protestors alike pushed toward the Members, destabilizing the group. The Members repeatedly asserted their federal status and instructed the agents not to touch them. Ex. I at 1:00-1:20. Agents nevertheless pressed in on the Members as the crowd formed more tightly around them.

McIver has mapped this all onto the indictment to prove that to defend the case, McIver would have to submit her actions as a Member of Congress to the jury for scrutiny.

McIver then goes on to argue that she is therefore immune under both Speech and Debate and — citing Trump v. US — separation of powers.

The separation of powers accordingly confers an immunity on the official acts of legislators symmetrical with the immunity for the President’s official acts. The Speech or Debate Clause confers immunity on legislative acts, which represent legislators’ “core constitutional powers,” and are thus absolutely immune. Trump, 603 U.S. at 606. The separation of powers extends further, making clear that legislative immunity also covers official acts, which represent “the outer perimeter of [the legislator’s] official responsibility.” Id. at 596. But that broader scope comes with a caveat: these acts are only presumptively immune. Id. at 614. Immunity for this wider class of official conduct may be rebutted when “the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the” Legislative Branch. See Trump, 603 U.S. at 615 (cleaned up).17 The prosecution cannot do so here.

Motion to Compel

Virtually all of that narrative comes from Body Cam video provided in discovery. There’s one important exception: where an ICE agent shoved McIver so hard that she immediately said she was going to file a complaint.

Allegation: Count Two alleges that “[f]ollowing the arrest of” the Mayor, Congresswoman McIver “pushed past” another agent “using each of her forearms to forcibly strike” the agent “as she returned inside of the secured area of Delaney Hall.” Indictment at 5.

Evidence: After a few short moments, the Mayor made his way to V-1 to submit to arrest, and was promptly dragged back into the secured area and handcuffed. Congresswoman McIver followed, and an agent forcefully shoved her backward before she could reenter the secured area. NJ Spotlight News (@NJSpotlightNews), X (May 9, 2025 15:29 ET), https://x.com/NJSpotlightNews/status/1920926649777852742. Indeed, the agent’s use of force against Congresswoman McIver as she was reentering the facility was so egregious that—unlike the officers responding to the Congresswoman’s actions—she immediately informed an ICE official that she intended to file a complaint. Ex. I at 3:30-3:43. Congressman Menendez reentered with Congresswoman McIver, and Congresswoman Watson Coleman was escorted back through the gates with the help of agents. After the turmoil subsided, the Members were permitted to enter the building and complete their inspection.

That is one of the reasons she filed a motion to compel. She didn’t get Body Cam footage from at least two key ICE officers: the second guy she allegedly assaulted, and the guy who shoved her.

Second, there were as many as 15 uniformed law enforcement officers or agents with BWCs on site; several, however, apparently made no recordings. The lack of videos from those who were wearing BWCs appears to be inconsistent with applicable ICE policy and instructions at the scene from a supervisory agent. Indeed, at least two critical individuals have no BWC footage: the law enforcement agent identified in the Indictment as V-2, who is the alleged victim in Count 2; and another agent who appeared to violently shove Congresswoman McIver in the chest as she attempted to return inside the Delaney Hall gate. A government agent’s deliberate failure to activate a BWC contrary to policy and instructions clearly is relevant to the preparation of the defense. In addition, there were other agents who had no BWC at all.

In the guise of proving the full context of her visit that day, McIver has also asked for other video from the facility (which might provide more proof of the calls to people like Todd Blanche or might explain why a bunch of ICE vehicles arrived while the members of Congress were waiting).

To that end, the defense’s discovery letter requested that the government provide “all interior and exterior surveillance footage of any events on May 9, beginning at least 10 minutes before Congresswoman McIver’s arrival at Delaney Hall through at least 4:00 p.m., which is after she departed the facility’s secured perimeter.” Ex. K, Req. I.A. The government’s response was inconsistent. On one hand, the government indicated that it would attempt to locate and produce “footage of the Representatives’ tour of the Delaney Hall facility after the arrest of Mayor Baraka had taken place,” though it disclaimed the relevance of such footage. On the other hand, the government claimed that it received these two surveillance videos from GEO Group (the private company that ICE has retained to operate Delaney Hall). However, the government claims that other GEO Group materials are not in the government’s possession and suggests that the government has no other surveillance videos from stationary or fixed cameras. The government did not otherwise respond to Congresswoman McIver’s request for more complete surveillance videos, apparently taking the position that this material is not relevant. Ex. M at 1 (“To the extent this letter does not provide the requested materials, it is the position of the Government that those materials do not fall within the ambit of Rule 16”).

She’s also seeking the communications of everyone present pertaining to whether they were assaulted or not.

Although Congresswoman McIver may seek further relief from the Court to require production of those communications as this case progresses, the Court should at least order the government to disclose now:

VII.A. All contemporaneous text, voice, instant, chat or email messages – sent via either Telegram, Signal, or any other communications method, application, or medium – to, from, between, or among anyone present at Delaney Hall on May 9, 2025 and anyone else affiliated or associated with the GEO Group, DOJ, the U.S. Attorney’s Office, ICE, HSI, or DHS describing, reflecting, or implying that any government employee present on May 9 at Delaney Hall did not experience or report harm, injury, danger, or fear as a result of Congresswoman McIver’s actions.

VII.B. All written, verbal, or other reports or statements – whether or not memorialized – by any government official, individual affiliated with GEO, member of the public, or anyone else that is inconsistent with the charge that Congresswoman McIver knowingly, intentionally, or forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with federal officials on May 9.

These requests concern statements that show a lack of harm, injury, or fear by the alleged victims of the Congresswoman’s charged conduct.

Again, there’s a very sound reason to demand these communications based on the charges. But the video and the communications might also explain the involvement of Todd Blanche, Alina Habba, and Kristi Noem.

Selective Prosecution

Which brings us to the selective prosecution filing. As I said a million times when covering Hunter Biden’s selective prosecution bid (which I think might have survived if he had had money to appeal), these are almost impossible to win because you have to prove that someone similarly situated was not charged.

But McIver does that one better. She compares how DOJ dismissed all the January 6 assaults, even while charging her.

Just months ago, the Department of Justice dismissed cases against hundreds of defendants involved in the January 6, 2021, attack on the U.S. Capitol. Among these dismissals were over 160 prosecutions charging the defendants with violations of 18 U.S.C. § 111 stemming from their assault of federal law enforcement officials who were protecting the Capitol and the Members of Congress and their staff. Video footage showed these defendants throwing explosives, beating federal officers with baseball bats and riot shields, and spraying them with pepper spray, all in an effort to overturn the 2020 presidential election. The Justice Department not only walked away from those charges, but it has since fired career prosecutors, agents, and support staff for their mere participation in the investigations and prosecutions. This case charges Congresswoman LaMonica McIver, a sitting Democratic Member of Congress, with violating the same federal assault statute. But the similarity ends there. As the government concedes in the indictment, Congresswoman McIver was exercising her statutory and constitutional oversight responsibilities when she visited Delaney Hall—a privately run immigration detention facility that Immigration and Customs Enforcement (ICE) recently reopened in her District. Unlike the January 6 rioters, Congresswoman McIver had every right to be on those premises. Indeed, she was there to do her job.

There is also a palpable difference between the actions of those at the Capitol on January 6 and Congresswoman McIver’s conduct. Footage that the government has provided in discovery shows that federal officials made a series of manipulative, irresponsible, and dangerous decisions that placed dozens of bystanders, as well as three Members of Congress, at risk of physical harm. In fact, the video recorded almost two dozen armed agents and officers of ICE and Homeland Security Investigations (HSI) surging into a crowd in a public space to arrest the Mayor of Newark for supposedly trespassing on federal land. The government, of course, has since dismissed that ill-conceived and unfounded charge against the Mayor. But during that episode, it was those heavily armed law enforcement personnel who precipitated and were responsible for creating several minutes of physical chaos. In the end, as the indictment implicitly concedes, no federal agent experienced any injury whatsoever.

In that respect, too, January 6 was entirely different. That day, outnumbered Capitol Police officers stood their ground against hundreds—if not thousands—of rioters who were trying to overrun the Capitol to intimidate the legislators inside in hopes of overriding a national election. A substantial number of those brave officers were seriously injured. Yet, the Department of Justice has dropped the charges against over 160 individuals accused of that conduct.

Later in the filing, McIver cites three particularly egregious cases that were still pending when DOJ dismissed all these cases: Daniel Ball, Tim Boughner, and Jake Lang, all of whom were detained pretrial until Trump made their charges go away.

What, McIver ponders, led to the starkly different prosecutorial decisions? Well, there’s proof, in the form of a letter then Acting Deputy Attorney General and now Third Circuit Judge who might preside over any appeal, Emil Bove, sent ordering the firing of a bunch of FBI Agents who had been involved in January 6 investigations.

What explains the government’s insistence on prosecuting Congresswoman McIver, but not rioters charged with serious violence under the same statute? Senior federal officials have made ample public statements that point inexorably to the answer. In particular, the leadership of the Department of Justice, echoing the President’s official proclamation, has described the January 6 prosecutions as “a grave national injustice.”1

1 Mem. from Acting Dep. Att’y Gen. Emil Bove to Acting Dir., FBI (Jan. 31, 2025) (quoting Proc. No. 10887, 90 Fed. Reg. 8331, 8331 (Jan. 20, 2025)), https://perma.cc/C5NB-KV3V.

Motion to Restrain

In support of her selective prosecution bid, McIver also cites the statements that are the subject of her motion to restrain extrajudicial statements:

  • A press release accusing the Members of Congress of breaking into the Delaney Hall.
  • A Tweet disseminating a heavily edited picture of the alleged assault involving McIver.
  • Another press release purporting the debunk the “fake news” correcting prior false claims about the incident.
  • Yet another press release implicating McIver in an assault on an ICE officer that happened in California (which ICE was trying to blame on Salud Carbajal).
  • One more press release, one of the recurrent ones that claim wildly inflated numbers for ICE assaults, again implicating McIver in those assaults.

For each of the statements, McIver notes how the communications are misleading and how they prejudice her case.

When Kilmar Abrego tried to get DHS gagged, the judge said they weren’t parties to his criminal case. But here, DHS runs the facility where this happened and employs the men who claim to have been assaulted.

McIver is asking for an order that these statements be taken down and threatens to ask for her prosecution to be dismissed if DHS continues such statements.

So here’s how this will all play out: If DOJ wants to sustain this prosecution, they will need to first defend against the Congressional immunity claim — including a potential interlocutory appeal — and Todd Blanche and John Sauer will be held to claims they made last year to get Trump out of trouble. But even as that’s proceeding, Judge Semper may well order DOJ to provide more discovery, either on her normal discovery request or to support the selective prosecution claim. Because, yeah, it is pretty shady that two of the three most important witnesses to this alleged assault somehow don’t have any Body Cam footage, and yeah, it’s pretty shady that DOJ claims not to have access to prison footage that might capture additional calls to DOJ.

Meanwhile, Baraka’s malicious prosecution lawsuit has done nothing since June; perhaps DOJ is thinking twice about defending it? In that case, Ricky Patel made sworn statements to justify Baraka’s arrest that conflict with the evidence here. If he didn’t already know, Baraka has just learned that before Patel made those statements, Todd Blanche personally ordered him to arrest Baraka, even after Baraka complied with Patel’s order to leave the facility. And if this were to go to trial, Patel’s inconsistent statements would be a central focus of the case.

I don’t know how this case will end.

But it won’t end well for DOJ.

Update: There’s one more way this filing may prove useful: the Democratic members of Congress lawsuit against DHS for denying them access to detention facilities. DOJ got a delay in their response, but the MoCs could file an amended complaint.

Share this entry