Prosecuting a Member of Congress

By now, you’re probably aware that Alina Habba, the president’s former personal lawyer and current interim U.S. Attorney for the District of New Jersey, charged Representative LaMonica McIver as a result of an incident where members of Congress and others were attempting to investigate conditions around ICE detentions. Threats of politically motivated prosecutions have been in the air for some time. Now we have an actual one, another step on the road towards authoritarianism.

Before we get into the substance of the issues here, I want to clarify Habba’s status. She is not the United States Attorney for New Jersey. That would require nomination by the president and confirmation by the Senate, although Habba, who once said that if given the choice, she would rather be pretty than smart, bills herself that way on the office’s website

You might think it’s a distinction without a difference, but that is not the case. The provision of law regarding the appointment of U.S. Attorneys provides that “[t]he President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.” When there’s a vacancy, the Attorney General can appoint a temporary replacement for the empty position, as long as it isn’t a person previously nominated by the president and rejected by the Senate. That temporary appointee serves until a presidentially appointed nominee is confirmed by the Senate. If that doesn’t happen within 120 days, the Attorney General’s choice is displaced by a person selected by the combined judges of the federal district court where that U.S. Attorney serves. That is the position Habba apparently occupies now. She’s a short timer unless she is nominated and confirmed before her 120 days are up.

Habba is not Trump’s first U.S. Attorney of his second term in New Jersey. Her predecessor, John Giordano, took office on March 3, 2025. He didn’t last long. Giordano stepped down on March 24, the same day Habba took office, and was appointed Ambassador to Namibia. A source told me that “he held an all hands meeting” in the U.S. Attorney’s Office “to celebrate his many huge successes as he left. After three total weeks on the job.”

So the office has certainly had its fair share of upheaval in the last few months. Beyond the rapid changes at the top, there are the now-dismissed charges brought against Newark Mayor Ras Baraka. He was arrested on May 9 for trespassing after he joined three members of Congress who were conducting an unannounced inspection—something they’re entitled to do—at a privately run federal immigration detention center. Habba explained the dismissal like this: "After extensive consideration, we have agreed to dismiss Mayor Baraka's misdemeanor charge of trespass for the sake of moving forward." It is rare for federal prosecutors to be misdemeanor charges absent unusual and compelling circumstances.

Representative McIver was charged with assaulting law enforcement officers outside of the immigration detention facility in New Jersey earlier this month under 18 U.S.C. § 111(a)(1), which makes it a crime to “forcibly” assault, resist, oppose, impede, intimidate, or interfere with certain federal employees including law enforcement officials who are performing their official duties. The violation can be either a misdemeanor or a felony, depending on how physical the contact is.

The charges are similar to the ones filed against some of the now-pardoned January 6 defendants who stormed the Capitol.

McIver is very capably represented by my Obama administration U.S. Attorney colleague in New Jersey, Paul Fishman. Fishman called the decision to charge her “spectacularly inappropriate.” In comments to NBC News, he sketched what the Congresswoman’s defense might look like: “She went to Delaney Hall to do her job. As a member of Congress, she has the right and responsibility to see how ICE is treating detainees. Rather than facilitating that inspection, ICE agents chose to escalate what should have been a peaceful situation into chaos. This prosecution is an attempt to shift the blame for ICE’s behavior to Congresswoman McIver.”

For her part, the Congresswoman called the charges “purely political” and said, “they mischaracterize and distort my actions, and are meant to criminalize and deter legislative oversight."

Habba tweeted the charges against McIver, who said that was how she learned of them.

It’s hard to imagine a conviction here. The Congresswoman was engaged in statutorily and constitutionally protected congressional oversight work. The agents were in the wrong for interfering with her. In fact, given her federal status, they could just as easily have been charged for assaulting her under the statute (although they would enjoy qualified immunity). The case is likely to be dismissed by a judge in the preliminary stages.

Even if the case were to go to trial, it’s hard to imagine a unanimous jury verdict on these facts. The government bears the burden of proof beyond a reasonable doubt. But this sort of prosecution by the federal government achieves an entirely different goal, one reminiscent of the charges against Wisconsin Judge Hannah Dugan. This is how autocrats discourage people from getting out of line. It’s how they chill dissent. It’s another step on the path toward autocracy.

The Trump Justice Department is breaking down norms at record speed, trying to normalize political prosecutions. They are the ones weaponizing the criminal justice system.

Who’s next? Perhaps a better question is, who isn’t next? Anyone who speaks up is at risk, and that’s precisely the message the Trump administration wants to send. The Nazis used tactics like this to quiet dissent, as, of course, have many other dictators in varying degrees. Attack the judges, attack the legislature, silence the opposition. We are on a dangerous path.

Now more than ever, it’s important to understand what’s happening, to commit yourself to knowledge and truth. Thanks for being here with me and for being part of the fight to hold onto democracy in this country. We have a lot of work ahead of us. Please share Civil Discourse with your friends. It’s going to take all of us to keep the Republic.

We’re in this together,

Joyce