On Thursday night, the Justice Department revealed an indictment against former FBI Director James Comey, that lays out vague allegations that Comey made false statements to Congress.
The indictment is not at all surprising because, last week, President Donald Trump briefly posted, and then deleted, what appears to be a direct order to Attorney General Pam Bondi to target three of his perceived political enemies: Comey, Sen. Adam Schiff (D-CA), and New York Attorney General Letitia James (D).
Among other things, Trump’s post, which appeared on his social media site Truth Social, appears to confirm that Erik Siebert, who until recently served as a US Attorney for the Eastern District of Virginia, was removed from office after he refused to bring criminal charges against James because his office was unable to find evidence that she committed a crime. Before leaving the Justice Department, Siebert also reportedly conveyed to his superiors that the case against Comey is weak.
And this isn’t the first time Trump’s Justice Department targeted one of the president’s perceived enemies. Months before Trump accidentally posted his message to Bondi, his administration already brought political charges against a Democratic member of Congress. Rep. LaMonica McIver (D-NJ) faces up to 17 years in prison for an incident where she briefly made physical contact with federal law enforcement officers who were attempting to arrest another elected Democrat, Newark Mayor Ras Baraka. The charges against Baraka were swiftly dropped, and a federal magistrate judge labeled Baraka’s arrest as a “worrisome misstep” — but the charges against her are still pending.
McIver is charged under a federal law that targets anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes” with a federal law enforcement officer carrying out their official duties. There’s no question that McIver, who joined a group of people attempting to block federal agents from seizing Baraka, impeded or interfered with that arrest. But she only committed a crime if she did so “forcibly,” and the Trump administration’s claim that she did is quite a stretch.
A video of Baraka’s arrest shows a chaotic scrum where officers repeatedly laid hands on McIver. McIver also made contact with the officers a few times; in the most significant interaction, she appears to have placed her forearm on an officer who had just knocked her off balance and pushed him away.
It may be unlikely that a jury would convict McIver, but the mere fact that she must hire lawyers to defend herself places an extraordinary burden on her. House ethics rules prevent her from accepting pro bono legal counsel, so she must either pay for her legal defense — which could cost hundreds of thousands of dollars or more out of pocket — or use campaign funds to pay her attorneys.
It is these costs, which threaten to either bankrupt McIver or siphon away the money she needs to campaign for office, that make the Trump administration’s decision to target her so alarming. Even if McIver is eventually found innocent, the prosecution of LaMonica McIver tests a new authoritarian tactic that Trump could potentially deploy against any elected Democrat: Bring dubious criminal charges against them, and force them to drain their campaign funds, and maybe even their personal bank account, in order to fight those charges.
The charges against McIver also test a provision of the Constitution that is supposed to prevent the executive from weaponizing criminal charges against members of Congress. This provision, as the Supreme Court said in United States v. Johnson (1966), is supposed to “prevent intimidation” of members of Congress “by the executive and accountability before a possibly hostile judiciary.” If the courts do not swiftly dismiss these charges, it will be a troubling sign that federal lawmakers can no longer rely on the Constitution to protect them from Trump.
The provision of the Constitution, known as the Speech and Debate Clause, explicitly protects members of Congress from prosecutions and other legal proceedings that interfere with their official duties. It protects them from arrest while Congress is in session, permits them to travel unmolested to congressional sessions, and it provides that members “shall not be questioned in any other Place” for “any Speech or Debate in either House.” But it extends much further than just literal speeches and debates among members of Congress. As the Supreme Court held in Gravel v. United States (1972), its “fundamental purpose” is “freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.” And the Court has read this clause “broadly to effectuate its purposes,” thus immunizing members of Congress from prosecutions that target their behavior as legislators.
The whole point of this clause, in other words, is to prevent the executive from using law enforcement to intimidate or interfere with federal lawmakers engaged in their official duties. If Trump can get around it and pursue charges against McIver, it will give him a new weapon to target his political enemies in Congress.
What is the basis for the charges against McIver?
In May, McIver arrived at an ICE detention center in her New Jersey district along with two other members of Congress, for an oversight tour. This is her right under a law that permits federal lawmakers to enter immigrant detention facilities “for the purpose of conducting oversight,” and to do so without providing “prior notice.”
Rather than immediately complying with the law, however, the facility appears to have stonewalled. McIver and her two colleagues, Reps. Bonnie Watson Coleman (D-NJ) and Rob Menendez (D-NJ), were placed in a holding room for more than an hour. During that time, Baraka arrived and also requested a tour of the facility. While guards initially let him inside the facility’s gate, Baraka was eventually asked to leave by about a dozen federal law enforcement officers — many of them wearing masks and body armor.
Baraka exited the gate. At least initially, that seemed like it would be the end of law enforcement’s involvement in this matter. But shortly after Baraka stepped outside the facility, one of the federal officers had a phone call with an unknown individual. According to McIver’s lawyers, video footage they obtained from the government shows this officer turning to his fellow law enforcement agents and announcing, “We are arresting the mayor right now, per the deputy attorney general of the United States. Anyone that gets in our way, I need you guys to give me a perimeter so I can cuff him.”
What followed was chaos. About 20 Homeland Security agents approached Baraka to place him under arrest. The three members of Congress, along with a small group of nearby protesters, circled the mayor to create a barrier between him and law enforcement. During the ensuing scrum, law enforcement officers repeatedly laid hands on McIver. At one point, as two officers wrestled the mayor away from McIver, the Congress member (who is wearing red) briefly pushed one of them with her forearm and said, “Get your hands off of me.”
Setting aside the question of whether the Speech and Debate Clause protects McIver from being prosecuted for anything she did during this scrum, a criminal trial against her would likely turn on whether the brief contact she made with a law enforcement officer was done “forcibly.” As McIver’s lawyers point out in a motion seeking to dismiss this case, if McIver’s contact with law enforcement was criminal, it is likely that law enforcement officers who made a similar amount of contact with her also committed a crime — violating a statute that forbids assaults on members of Congress.
But the Trump administration, of course, does not want to make an example of the DHS agents who engineered a dangerous clash between armed law enforcement agents and unarmed elected Democrats — and who apparently did so upon orders from Deputy Attorney General Todd Blanche. (The video of the officer saying Blanche ordered Baraka’s arrest is not publicly available, but it is described in one of McIver’s court filings. And the judge hearing the case does have access to the video.)
Blanche’s immediate target was Baraka, the sitting mayor of New Jersey’s largest city and a former high school principal. The idea that his presence at a detention center was such a threat to public safety that 20 federal law enforcement officers needed to respond is laughable. In the end, Baraka was only charged with misdemeanor trespass — and those charges were dropped less than two weeks later.
At the hearing formally dismissing them, the presiding magistrate judge admonished prosecutors from the bench, warning the Justice Department against “using the immense power of the government to pursue weak cases or to make examples without sufficient cause.”
The Trump administration, in other words, appears to have turned a peaceful encounter where McIver and her fellow lawmakers were exercising their statutory rights into a heated encounter. And then, when the charges against Baraka immediately fell apart, the administration also appears to have gone hunting for a pretext they could use to target a different elected Democrat.
But does the Constitution protect McIver from these charges?
McIver’s lawyers raise two constitutional challenges to Trump’s prosecution of her. The first is that she is being selectively prosecuted for the purpose of “punishing a Democratic official for her disfavored policy views.”
Selective prosecution cases are notoriously difficult to win, and for good reason. Federal law enforcement has limited resources, and no one would want to live in the kind of all-seeing police state that would be required to prosecute everyone who commits a federal crime. So both law enforcement agencies and prosecutors unavoidably must make decisions about which alleged criminal activity to prioritize, and which activity to let slide. And the Supreme Court has generally cautioned judges against second-guessing these decisions.
That said, in rare cases a criminal defendant may challenge the charges against them on the grounds that they were targeted because of their political viewpoint. McIver’s attorneys, for example, point to a court of appeals case that ruled in favor of anti-abortion protesters who were arrested for writing the words “Black Pre-Born Lives Matter” on a city sidewalk — even as police did not target protesters who wrote the more common phrase “Black Lives Matter.”
McIver’s primary argument is that the Trump administration treated her differently than the January 6 rioters who stormed the US Capitol in support of Trump, many of them assaulting law enforcement officers in the process. Trump pardoned these criminals, while his administration filed felony charges based on McIver’s brief physical contact with some of the law enforcement officers who carried out Blanche’s apparent order to arrest Baraka.
Additionally, McIver alleges that the DOJ violated its own policies, which “require prosecutors to consult with DOJ’s Public Integrity Section before bringing charges against Members of Congress,” as evidence that the prosecution against her was politically motivated. The Trump administration’s defense of this failure-to-consult is laughably weak. They point out that the policy was no longer in effect when McIver was charged — but that’s because the Trump administration suspended it days before the charges against McIver were filed.
If Trump is allowed to bring legally dubious prosecutions against Democratic members of Congress, he achieves his authoritarian goals regardless of whether any of those lawmakers spend a day in prison.
Still, selective prosecution claims are hard to win, and any defendant bringing such a claim faces an uphill battle.
McIver’s other claim rests on the Speech and Debate Clause, which the Supreme Court has historically interpreted very broadly to prevent law enforcement from interfering with members of Congress who are engaged in their official duties. And even Trump’s lawyers admit that McIver’s visit to the detention facility, in order to conduct oversight she is entitled to conduct under a federal statute, was part of her official duties.
Congressional immunity, the Supreme Court explained in Johnson, grew out of Britain’s “history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators.” The Court has repeatedly emphasized that it should be “read broadly to effectuate its purposes,” which is to prevent “criminal charges against critical or disfavored legislators by the executive.”
Thus, McIver’s Speech and Debate claim should turn on whether the chaotic scrum that law enforcement created when they carried out Blanche’s apparent order should be understood as a broader effort to thwart congressional oversight, or as a separate incident that is independent of the members of Congress’s visit to the detention facility.
Trump’s lawyers rely on the Supreme Court’s statement in Gravel that the Speech and Debate Clause “does not privilege” a lawmaker “to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Suppose, for example, that in the middle of her tour of an immigration detention facility, McIver had spontaneously drawn a knife and stabbed someone. The fact that she committed this hypothetical assault in the middle of an oversight visit would not protect her from prosecution, in large part because stabbing people has nothing to do with her congressional responsibilities.
But was interfering with Baraka’s arrest, however justified, similarly irrelevant to her oversight duties?
The United States, thankfully, does not share Britain’s history of the executive using criminal law enforcement to intimidate lawmakers. So there does not appear to be an existing judicial precedent addressing whether the Speech and Debate Clause applies when law enforcement, acting on the orders of a senior administration official, creates a tense conflict between themselves and a member of Congress who is engaged in oversight.
But Gravel also held that the Clause “recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach” to a lawmaker’s actions. And the Court has consistently emphasized that this Clause must be read “broadly” to prevent law enforcement from intimidating lawmakers or suppressing their official duties. So McIver’s argument that it applies to her is exceptionally strong.
From the moment McIver and her two colleagues arrived at the detention center, the Trump administration attempted to stonewall and intimidate them. It delayed their tour of this facility for more than an hour, and apparently used this time to muster a large force of federal law enforcement officers. It then used this force to expel a Democratic elected official, Mayor Baraka, from the facility after he’d previously been let in by a guard. And then, while McIver and the other members of Congress were nearby, a high-ranking Trump official apparently ordered those officers to arrest Baraka on such dubious grounds that a federal magistrate judge later scolded the Justice Department for bringing these charges in the first place.
McIver, in other words, faces criminal charges for actions she took to resist the Trump administration’s attempts to discourage her from conducting congressional oversight. That sort of discouragement is the very same kind of executive intimidation of lawmakers that the Speech and Debate Clause is supposed to prevent.
Without the Constitution’s protection, members of Congress are uniquely vulnerable to malicious prosecution
If Trump had targeted a high-profile critic who doesn’t serve in elected office — a journalist, perhaps, or maybe a late-night comedian — that critic might get free legal representation from an organization like the American Civil Liberties Union or the Foundation for Individual Rights and Expression, both of which frequently defend people who are targeted for exercising their First Amendment rights.
But recall that House ethics rules forbid members of Congress from accepting pro bono legal services. So McIver, who is the first person in her family to attend college and reportedly has close to a quarter of a million dollars in student loan debt, must either pay her legal bills herself or do so out of her campaign funds. Those bills are likely to add up to hundreds of thousands of dollars or more, even if the courts ultimately conclude that she is immune from prosecution.
If Trump is allowed to bring legally dubious prosecutions against Democratic members of Congress, in other words, he achieves his authoritarian goals regardless of whether any of those lawmakers spend a day in prison. Either he bankrupts many of his enemies and deters other lawmakers from challenging him, or he drains the campaign coffers that Democrats need to remain in office.
Meanwhile, Democratic members of Congress are a particularly attractive target for an authoritarian president because they are some of the most high-profile members of the opposition party, and because they could wield very real power against him if they gain a majority in either house of Congress.
Realistically, the courts cannot stop Trump’s Justice Department from bringing frivolous charges. But they can, as the magistrate judge in Baraka’s case did, swiftly recognize a political prosecution when they do happen. And they can move quickly to shut them down.
Again, the entire point of the Speech and Debate Clause is to “prevent intimidation by the executive and accountability before a possibly hostile judiciary.” If these Republican courts allow this Republican administration to continue this prosecution against a Democratic lawmaker, then that Clause has failed.