Third Circuit Clears Way for Pregnant Congresswoman's Trial as Dissent Warns of Constitutional Harm
Key Takeaways
- •The Third Circuit ruled 2-1 that Rep. LaMonica McIver must proceed to trial on charges from her May 2025 visit to Delaney Hall in Newark.
- •The majority affirmed dismissal of McIver’s challenge to two assault counts and remanded a third count to the trial judge.
- •The court said it did not have jurisdiction to review McIver’s claim that the prosecution is politically motivated.
- •Prosecutors say McIver struck a Homeland Security agent and an ICE officer during the incident, while McIver says any contact was accidental.
- •Judge Thomas Ambro dissented, warning that retaliatory prosecutions of sitting members of Congress could endanger constitutional foundations.
A federal appeals court has cleared the way for the criminal trial of a pregnant congresswoman, drawing a dissent that warns of lasting constitutional harm.
The U.S. Court of Appeals for the Third Circuit ruled 2-1 on Wednesday that Rep. LaMonica McIver (D-NJ) must face prosecution on charges stemming from her May 2025 oversight visit to Delaney Hall, an immigration detention facility in Newark. McIver is due to give birth to her second child this fall.
The ruling means the case can continue toward trial even as McIver pursues claims that the prosecution itself is politically motivated, a dispute that now highlights the tension between criminal process and separation-of-powers concerns when a sitting lawmaker is charged.
Prosecutors allege that during the visit McIver "slammed her forearm" into a Homeland Security agent and struck an Immigration and Customs Enforcement (ICE) officer as federal agents moved to arrest Newark Mayor Ras Baraka. McIver says any contact was incidental.
If convicted on all counts, McIver faces up to 17 years in prison, an article by All Rise News noted.
Judge Cindy Chung, a Biden appointee, wrote the majority opinion, affirming the denial of McIver's bid to dismiss two of three assault counts while sending a third count back to the trial judge. Trump-appointed Judge Stephanos Bibas joined Chung's opinion. The majority also found it lacked jurisdiction to weigh McIver's claim that the prosecution amounts to political retaliation — the claim the dissent targeted most directly.
Judge Thomas Ambro, a Clinton appointee, wrote the partial dissent.
"Potentially retaliatory prosecutions of sitting Members of Congress are exceedingly rare," Ambro wrote. "But when they do occur, the constitutional foundation of our government is at risk."
Ambro faulted the majority for declining to treat the case as extraordinary and take up her retaliation claim. "Real harm results from that choice," he warned.
He also measured McIver's treatment against the January 6, 2021, rioters whom President Donald Trump pardoned after they were charged under the same statute.
"When assessed against legitimate factors, [the January 6 rioters] were far more culpable than she is," Ambro wrote. "Many of them were armed, and she was not; they were unlawfully present, and she was not; many of them had criminal records, and she did not; many of them caused injuries, and she did not."
