Prosecution of Congresswoman for Assaulting and Impeding Federal Officials at ICE Delaney Hall Detention Facility Can Continue

Some excerpts from the long opinion in U.S. v. McIver, written by Third Circuit Judge Cindy Chung and joined by Judges Stephanos Bibas:

Congresswoman McIver represents New Jersey's 10th Congressional District in the United States House of Representatives and serves on the Committee on Homeland Security. On May 9, 2025, Congresswoman McIver and two other Representatives conducted an unannounced congressional oversight inspection of Delaney Hall Federal Immigration Facility, pursuant to statutory authority…. Upon arrival, Congresswoman McIver and the other Representatives entered through the security gate into the secured exterior area of the facility. They proceeded inside Delaney Hall and waited for over an hour in the facility's administrative office.

During that time, Newark Mayor Ras Baraka and his security detail arrived at Delaney Hall and they were allowed through the security gate into the secure exterior premises of the facility. Meanwhile, dozens of protestors and media members had amassed outside the security gate.

{We draw these facts from the Indictment, from evidence in the record, and as set forth by the District Court in its opinions. We accept as true the facts alleged in the Indictment for purposes of considering a motion to dismiss. Neither party challenges the facts as set forth by the District Court.}

The Homeland Security Investigations ("HSI") Special Agent in Charge in New Jersey (referred to in the Indictment and by the District Court as "Victim-1" or "V-1") approached the Mayor inside the security gate and advised him that he was not allowed on the premises, ordered him to leave, and told him he would be arrested if he did not comply. At that time, Congresswoman McIver and the two other Representatives left the administrative office and walked toward the security gate, where the Mayor was speaking with Victim-1. Victim-1 directed the Mayor and his security detail outside of the Security Gate to the unsecured area outside the facility, and Congresswoman McIver and the two Representatives began to walk back towards the administrative office.

Moments later, Victim-1 informed a group of federal agents that the United States Deputy Attorney General had authorized the Mayor's arrest, and the agents exited the secured premises and approached the Mayor and his security detail. Upon observing this, the Congressional delegation also proceeded into the unsecured area. An unidentified member of the crowd yelled, "circle the Mayor," and some protesters, as well as Congresswoman McIver and the two Representatives, encircled the Mayor as Victim-1 and the other agents pushed their way through the crowd to apprehend him.

Video surveillance shows Congresswoman McIver placing herself between the Mayor and Victim-1. The Indictment states that Congresswoman McIver then "slammed her forearm into the body of V-1" and "reached out and tried to restrain V-1 by forcibly grabbing him."

Victim-1 then handcuffed the Mayor and led him toward the security gate through a dense group of protesters. In the meantime, Congresswoman McIver and one of the Representatives also moved towards Delaney Hall to reenter the secured area. The Indictment then describes Congresswoman McIver as "push[ing] past" an ICE Deportation Officer (referred to in the Indictment and by the District Court as "Victim-2" or "V-2") while "using each of her forearms to forcibly strike V-2." Congresswoman McIver was able to reenter the secured area shortly thereafter, and she and the other two Representatives then entered the facility and conducted their oversight inspection.

The government charged that McIver "did forcibly assault, resist, oppose, impede, intimidate, and interfere" with a federal official or officials while the official(s) were "engaged in and on account of the performance of their official duties."

The actus reus alleged in Count One was that Congresswoman McIver "slammed her forearm" into V-1 and tried to restrain him by "forcibly grabbing him." The actus reus alleged in Count Two was that Congresswoman McIver "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."

Count Three did not allege a separate actus reus committed by Congresswoman McIver against a specific victim; rather, Count Three relied upon the prefatory paragraphs and charged Congresswoman McIver with forcibly assaulting, resisting, opposing, impeding, intimidating, and interfering with "HSI Special Agents and ICE Deportation Officers while said Special Agents and Officers were engaged in and on account of the performance of their official duties." At Oral Argument, the Government stated that the charged conduct in Count Three encompassed "essentially all" of Congresswoman McIver's "efforts to hinder, impede the arrest of the Mayor," including those efforts that "started even inside the gate." …

The court held that the indictment didn't violate the Speech or Debate Clause:

The Speech or Debate Clause provides that "for any Speech or Debate in either House," Members of Congress "shall not be questioned in any other Place." The "central role" of the Speech or Debate Clause is "to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." The Clause's protection extends beyond literal speech and debate on the floor to protect any "legislative activity" performed by a member of Congress…. The key inquiry is whether the act is " 'an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.'"

The Speech or Debate Clause does not provide a blanket protection over "all things in any way related to the legislative process." It does not extend to "political matters," for example, nor does it cover activities like "'errands' performed for constituents [and] the making of appointments with Government agencies." "[I]llegitimate activities such as accepting bribes in exchange for taking official action" also fall outside the scope of the Clause's protection, "[e]ven if these non-legislative acts involve policy or relate to protected legislative activity." On the other hand, "investigative activities by lawmakers are protected by legislative immunity," because "legislative fact-finding" and the "power to investigate" are "integral part[s] of the legislative process." …

[McIver's being] physically within the immigration facility's property or directly outside of it … is not dispositive. Instead, to determine whether her conduct was legislative, we focus "on the nature of the act." Any conduct Congresswoman McIver took that was investigative in nature was legislative, whether that conduct took place inside Delaney Hall or directly outside of it.

Still, the nature of the conduct charged in Count One is non-legislative. Congresswoman McIver's physical contact with Victim-1 was not "integral" to the "deliberative and communicative processes by which Members participate in committee and House proceedings"—namely, to her inspection of Delaney Hall. This conclusion would hold regardless of whether Congresswoman McIver had physical contact with Victim-1 inside Delaney Hall or outside of it, just as the Speech or Debate Clause protects Congresswoman McIver's legitimate legislative fact-finding, whether such fact-finding occurs on or off the facility's property…. [Likewise,] the acts of pushing past and forcibly striking someone are unambiguously non-legislative: they are not integral to the legislative process….

Congresswoman McIver further asserts that, per Section 527 [of the Federal Consolidated Appropriations Act], the act of entering a DHS facility "for the purpose of conducting oversight" is legislative in nature. Section 527 states in relevant part that "[n]one of the funds appropriated or otherwise made available to the Department of Homeland Security by this Act may be used to prevent any [member of Congress] from entering, for the purpose of conducting oversight, any [detention] facility operated by or for the Department of Homeland Security." Count Two does not charge Congresswoman McIver for entering Delaney Hall, however; it charges her for pushing past Victim-2 and using her forearms to forcibly strike him—conduct distinct from, though occurring during the process of, "return[ing] inside of the secured area of Delaney Hall." We have considered the "nature" of the charged conduct and concluded it is unambiguously non-legislative….

[N]othing in the record indicates that Congresswoman McIver's entry into the secured area of the facility was an act of inspection, rather than simply a "necessary precondition" to her oversight. Whether McIver's legislative and non-legislative actions are "intertwined," as our dissenting colleague contends, might be a closer call if, for example, Congresswoman McIver asserted that she was observing Victim-2's conduct as part of her inspection and contacted Victim-2 incidentally upon re-entry into the facility as she leaned forward to read his nametag.

Given what she does contend, though, the nature of her conduct in entering the secured area is … not subject to the Clause's protections. Section 527's reference to "entering" a detention facility does not change our analysis. Section 527 sets forth limitations on spending and does not prescribe content for legislative duties. Its text therefore cannot transform the act of entering Delaney Hall from a "precondition" to an "integral part" of Congresswoman McIver's inspection that day….

Count Three also incorporates the first 12 paragraphs of the Indictment, which describe conduct both inside and outside the security gate that allegedly prevented the Mayor's arrest. It charges Congresswoman McIver with forcibly assaulting, resisting, opposing, impeding, intimidating, and interfering with "HSI Special Agents and ICE Deportation Officers while said Special Agents and Officers were engaged in and on account of the performance of their official duties."

Count Three differs from the other two counts, however, in that it does not assert a specific actus reus. Instead, Count Three charges Congresswoman McIver for engaging in a range of conduct covering a broad timeframe and involving numerous unidentified victims. Indeed, the Government stated at oral argument that Count Three was intended to charge "essentially all" of Congresswoman McIver's "efforts to hinder … the arrest of the Mayor," including those efforts that "started even inside the gate."

The District Court did not consider these factual differences when it analyzed Counts One and Three. Rather, it grouped Counts One and Three together and focused on the narrower timeframe when Congresswoman McIver was outside the security gate. Based on the description at oral argument, though, Count Three implicates a larger range of conduct and, at a minimum, paragraphs 10-12 of the Indictment. Because the District Court did not separately assess the nature of the conduct charged at Count Three, we will remand for the District Court to consider whether the charged conduct includes legislative acts and, if so, whether Count Three can stand when eliminating such protected conduct.

The court also rejected McIver's separation of powers argument, and concluded that it lacked appellate jurisdiction to consider, at this stage of the proceedings, McIver's First Amendment selective prosecution argument:

Judge Thomas Ambro concurred as to separation of powers, but dissented in part as to the speech or debate clause, and also argued that the court did have jurisdiction to consider the First Amendment argument. A short excerpt:

[T]he Speech or Debate Clause … privilege … prevents "a criminal action … instituted by the Executive Branch" from "imperil[ling]" legislative independence by questioning a Member's motivation when exercising her core legislative duties. The duty Congresswoman McIver sought to perform when she visited Delaney Hall on May 9, 2025 strikes at the heart of the Clause's purpose: to oversee the Executive Branch. I agree with my colleagues that Count One—"slamm[ing] her forearm" into Victim-1 ("V-1") and "forcibly grabbing him," in an effort to stop the arrest of Mayor Baraka—does not implicate that protected activity. And I agree that a remand is necessary to sort out whether Count Three does so.

But I part with the majority's treatment of Count Two. I would vacate the District Court's denial of Congresswoman McIver's motion to dismiss that Count and remand for factual findings critical to determining whether legislative immunity attaches to the act the Count targets….

Count Two charges that Congresswoman McIver "pushed past" Victim-2 ("V-2") and "us[ed] each of her forearms to forcibly strike [him] as she returned inside of the secured area of Delaney Hall." … [But] the extrinsic evidence [shows] that Congresswoman McIver's contact with V-2 was incidental to re-entering Delaney Hall to inspect the facility, an act of legislative fact-finding covered by the Speech or Debate Clause and authorized by federal law…. When a Member claims legislative privilege by proffering an "ambiguously legislative" act, as the Congresswoman does here, courts must consider the "content, motive, and purpose" of the act to determine whether immunity attaches.

Because I believe the context surrounding the contact between Congresswoman McIver and V-2 demands closer scrutiny than the majority's analysis affords, I part from its treatment of Count Two. I believe the District Court determined correctly that her acts were ambiguously legislative …. I would vacate its denial of her motion to dismiss Count Two and remand for additional fact-finding to determine whether she shoved him gratuitously, intending to inflict harm, or merely made incidental contact with V-2 in an effort to re-enter the facility that federal law authorizes her to inspect….