NJ Congresswoman’s Defense Tests Bounds of Trump Immunity Ruling

A federal congresswoman’s effort to dismiss federal charges against her is raising for the first time whether the broad immunity the US Supreme Court conferred to President Donald Trump equally applies to members of Congress facing criminal allegations.

Judge Jamel K. Semper devoted part of a two-hour hearing Tuesday in the US District Court for the District of New Jersey to Rep. LaMonica McIver’s (D-N.J.) argument that she’s immune from criminal prosecution related to a confrontation with officials at an immigration detention center in May because she was conducting a key legislative act of oversight inspection.

Semper, a Joe Biden appointee, focused much of his legislative immunity questioning on McIver’s claim that her oversight of the Newark, N.J., detention facility falls under the Constitution’s absolute immunity protection for legislative acts, according to an individual in the courtroom for Tuesday’s in-person hearing.

McIver’s defense team also raised for the court a novel legal argument that McIver has presumptive immunity for all official acts based on the Supreme Court’s 2024 ruling in Trump’s criminal case related to the 2020 presidential election results and the Jan. 6, 2021, attack on the US Capitol.

Though former Justice Department attorneys and legislative counsel say it’s unlikely Semper will reach the connection to the Trump case in his decision, they note it’s the first attempt to connect the high court’s rationale to members of the legislative branch. The untested argument could eventually reach the Supreme Court as the Trump administration continues to bring federal charges against the president’s perceived enemies.

“It would be very strange if the court grants the president stronger immunity than members of Congress when the Constitution is silent, and then recognizes weaker immunity for members of Congress when the Constitution is actually explicit about their protection,” said Dave Rapallo, director of Georgetown Law’s Federal Legislation Clinic and former Democratic staff director for the House Oversight Committee.

Link to Trump

The defense by McIver, who’s among several Trump opponents seeking to dismiss DOJ charges against them, is novel in its attempt to link her legal protections to Trump himself, lawyers say.

“Someday the Supreme Court might ultimately hear the case, and in that instance, it may prove to be a smart, strategic decision by the lawyers in this case to tee the issue up early,” said Carlos Felipe Uriarte, assistant attorney general for the DOJ’s Office of Legislative Affairs under Biden.

Semper on Tuesday considered McIver’s pretrial motions that the charges against her be dropped based on legislative immunity, as well as selective enforcement and prosecution and vindictive prosecution.

The criminal complaint brought by the office of Alina Habba, whose appointment as New Jersey’s top federal prosecutor is before a federal appeals court, accuses McIver of assaulting two homeland security officers and impeding their ability to arrest Newark Mayor Ras Baraka (D). The US attorney’s office dropped the case against Baraka on May 19, the same day it filed the complaint against McIver.

McIver’s lawyers, Arnold & Porter Kaye Scholer LLP partners Paul Fishman and Lee Cortes, argued it would “raise significant constitutional questions” if federal courts allowed “a disparity between two immunities across the two political branches of government” following the Supreme Court’s Trump immunity ruling.

The Trump case “was such a sweeping distinction that I’m not surprised to see it come up in this context,” said Alexis Loeb, a partner at Farella Braun + Martel LLP who previously worked as a DOJ trial attorney.

But it’s unclear if McIver’s case would result in the Supreme Court extending its reasoning to the legislative branch, she said.

“It seems like the Supreme Court is particularly motivated by arguments about executive power and protecting that,” Loeb said.

Speech or Debate Clause

Former DOJ attorneys and legal counsel say that if Semper reaches the question of legislative immunity, he’s more likely to focus on the Constitution’s speech or debate clause, which has a much longer history of litigation involving members of Congress.

On that argument, “a main question is whether the visit to the facility is going to be considered the legislative activity that falls within the doctrine,” Loeb said.

Legislative acts that are protected under the speech or debate clause traditionally include speaking or voting on the House floor and actions in committee hearings, said Kim Hamm, co-chair of Morrison & Foerster LLP’s congressional investigations practice.

“The further you get away from that kind of like very core legislative activity, it just becomes harder to predict how courts will react,” said Hamm, who previously served as general counsel to former House Speaker Kevin McCarthy (R-Calif.).

The DOJ conceded in its response to McIver’s motions to dismiss that conducting oversight can be considered a key legislative function but said her alleged interference with federal agents doesn’t fall under that protected activity.

Sara Zdeb, a visiting law professor at Emory University and former senior DOJ official, said the judge will be forced to evaluate whether the crime McIver “has actually been charged with, which is assaulting and interfering with federal agents, implicates that legislative act.”