Rep. LaMonica McIver (D-Newark) may still appeal a decision by U.S. District Judge Jamel Semper denying her motions to dismiss the Department of Justice’s assault charges against her, but the timeframe for that potential appeal has been moved back thanks to ongoing wrangling over evidence and one unresolved component of McIver’s motions.
Both sides have until December 9 to submit supplemental briefings on additional evidence that has been put forward in recent weeks regarding Count Two of the indictment; after Semper has issued a final ruling regarding those briefings, the clock for McIver’s legal team to appeal will begin again.
When Semper issued his ruling on November 13 largely rejecting McIver’s motions, he withheld judgement on Count Two, which alleges that McIver assaulted an Immigration and Customs Enforcement officer at the Delaney Hall immigrant detention facility. McIver had argued that she was conducting official business and thus was protected by legislative immunity, and Semper wrote that the accuracy of her assertion “can only be established by facts that the parties have not yet put before the Court.”
At a November 17 status conference, McIver’s attorneys and DOJ officials continued to debate the scope of what evidence should be included in the case, including body camera footage and messages among agents present at Delaney Hall on May 9. Semper directed the government to continue releasing footage and evidence to McIver, and set the December 9 deadline for further briefings from both parties.
Under normal circumstances, after the November 13 ruling was issued, McIver would have had 14 days to file notice of an appeal to the Third Circuit Court of Appeals. Paul Fishman, one of McIver’s attorneys, said when the ruling came out that the congresswoman and her team were “currently evaluating next steps” regarding an appeal.
But at the status conference, Semper allowed that 14-day window to be paused as further proceedings over Count Two play out, acknowledging that the parties would prefer to appeal every component of his ruling at once rather than do so piecemeal. Semper also seemed to anticipate a near-certain appeal in the case.
“I recognize that Counts One and Count Three will be briefed up and argued before the circuit,” he said at one point, referencing the two counts that he allowed to stand in his initial ruling.
The case has been ongoing since May, when McIver was charged after scuffling with immigration agents in the aftermath of Newark Mayor Ras Baraka’s arrest outside Delaney Hall. Trespassing charges against Baraka were later dropped, but the Trump administration instead shifted its focus to McIver, a first-term congresswoman.
Spearheading the case has been Alina Habba, but her own authority as acting U.S. Attorney is now in severe doubt; a panel of Third Circuit judges unanimously ruled earlier today that Habba was unlawfully appointed to her post, throwing the U.S. Attorney’s office into limbo.
