FAFO Friday: DoJ To Indict House Dem in ICE Assault

As Democrats loved to remind us ad infinitum, over the last few years: No one is above the law. Right? Right?

Looks like we’ll soon find out. The New Jersey Globe reports that one House Democrat will face federal charges for her role in an assault on an ICE facility a week ago that made national news. Rep. LaMonica McIver was caught on video allegedly assaulting law enforcement officials who attempted to arrest Newark Mayor Ras Baraka for illegally pushing his way into the compound, touching off a small riot at the gate:

The Justice Department plans to bring charges against Rep. LaMonica McIver (D-Newark) following a scuffle with federal immigration agents last week at Newark’s Delaney Hall detention center, three sources speaking on the condition of anonymity confirmed to the New Jersey Globe.

Much is still unknown about the case against the freshman congresswoman, but interim U.S. Attorney Alina Habba could announce charges as early as today. McIver may turn herself in this afternoon, the New Jersey Globe learned; she’ll be represented by Paul Fishman, the U.S. Attorney for New Jersey during the Obama administration. …

Video footage shows the fight to have been a general scramble. McIver in particular forcefully attempted to protect Baraka both physically and verbally as he was led away, which may be the basis for charges against her, though claims from some Republicans that she body-slammed or punched ICE officers are more dubious based on the footage available. (Menendez and the 80-year-old Watson Coleman were also involved in the melee, but there’s less video evidence of them physically engaging with agents, perhaps explaining the Justice Department’s focus on McIver.)

As John noted last night, Baraka had to appear in court on trespassing charges yesterday, and he was not happy about it. Baraka turned it into a rally for his expected gubernatorial bid after his brief appearance in court, but he’ll be back again in July for a trial unless all sides settle the case. Baraka claims that he has the authority to inspect the facility on demand for potential city code violations, but ICE facilities are federal and are governed first by federal law. If Baraka wanted a tour, he would have to make those arrangements. (Also worth noting: mayors do not usually conduct code inspections, even for facilities that are not federal in nature.)

Even if Baraka did get arrested in error, however, interfering with that arrest is obstruction of a law enforcement officer, and putting hands on an LEO is battery — a felony in that circumstance. It’s not yet clear what charges Habba will bring, but the video makes a case for obstruction and battery regardless of whether a body-slam took place or not. McIver is wearing a red jacket and can clearly be seen physically engaging ICE security forces as Baraka gets taken into custody:

Watch the whole thing to see McIver and her fellow House Dems telling law enforcement that they are “federal officials” and not allowed to touch them. The potential battery starts about midway through the video and continues until McIver pushes her way inside the gate, at which point the LEOs are more concerned about controlling the crowd that the Democrats incited into mob action. 

Does that qualify as obstruction and battery? YMMV, but in fact, 18 USC 111 doesn’t even require physical contact to prosecute this circumstance as a felony. Just the attempt to obstruct Baraka’s arrest through intimidation could get a convicted defendant up to eight years in prison:

(a)In General.—Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or

(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

That right there is the law. And no one is above it, right? 

Well, maybe. I suspect that when McIver’s claims that she didn’t commit the crime meet the clear evidence in this video, her defense team will fall back to the Speech and Debate Clause in Article I, Section 6 of the Constitution. But that may not work either, for reasons which are apparent in the plain language:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

McIver will claim that she was conducting congressional oversight on the ICE facility and therefore was part of the work in this open session of Congress. That would make her “privileged from Arrest,” right? Not exactly. The video clearly shows this as a “Breach of the Peace” under any possible definition of that term, which is a clear exemption from the clause. And not just that, but if Habba charges 18 USC 111, it’s also a felony. The clause exists to keep local and state law enforcement from unduly impeding Representatives and Senators from attending Congress over petty infractions and misdemeanors, not providing them a Get Out of Jail Free card for inciting riots at federal facilities.

In the days before Democrats embraced lawfare for political purposes, this kind of matter would likely have been handled quietly by the House and the caucus. After the weaponization of government not just against Donald Trump but also against pro-life activists, foolish rioters on Capitol Hill, and the suppression of dissent and debate, the gloves are now off on both sides. FAFO is now the law, for better or worse.