The McIver Indictment Explained

The U.S. Attorney’s Office for the District of New Jersey, led by former Trump lawyer Alina Habba, announced Tuesday that a grand jury had indicted Congresswoman LaMonica McIver this morning. The New Jersey congresswoman, who was previously charged in a complaint, has now been indicted for assaulting a federal officer. There are three counts in the indictment, the first two charging assaults on specific Immigration and Customs Enforcement (ICE) employees who are identified only as victims one and two (“V-1” and “V-2”). The first count involves a special agent with Homeland Security Investigations (HSI), a directorate of ICE that focuses on criminal cases. The victim in the second count is an ICE deportation officer. The third count charges McIver with the same crime involving unspecified ICE agents and officers.

Habba, in her official government photo

The maximum sentence for this crime is eight years in custody, although as a practical matter, if McIver were convicted, the sentence she would actually receive under the federal sentencing guidelines would be considerably lower.

The government alleges that “McIver forcibly impeded and interfered with federal officers as they attempted to arrest an individual outside the Delaney Hall Federal Immigration Facility in Newark, New Jersey on May 9, 2025.” That individual, who isn’t identified in the indictment, is Newark Mayor Ras Baraka, who was charged after the incident. But the charges against him were later dismissed, and a federal magistrate judge sharply criticized Habba’s office for how they handled the matter.

The indictment acknowledges that McIver was there to conduct a congressional oversight inspection—members of Congress are entitled to inspect these facilities at any time with no advance notice. Habba’s press release explains that charges resulted because, “When officers moved in to arrest the Mayor, McIver and others surrounded the Mayor and prevented the officers from handcuffing him.” “McIver forcibly impeded and interfered with federal officers as they attempted to arrest” Newark Mayor Ras Baraka outside the Delaney Hall Federal Immigration Facility in Newark, N.J., on May 9, the U.S. Attorney's Office said.

The next court proceeding in the case will be an arraignment, scheduled for June 16 before Judge Jamel K. Semper. Arraignment involves formally advising a defendant of the charges against them, ensuring they understand them, and giving them an opportunity to plead, which typically means a plea of “not guilty” at this stage in a case. Judge Semper was an Assistant United States Attorney in the New Jersey U.S. Attorney’s Office from 2018 to 2023, where he headed the organized crime and gangs section before President Biden appointed him to the federal bench.

The statute McIver is charged with violating is 18 USC 111, assault of a federal officer. It reads as follows:

18 U.S. Code § 111 - Assaulting, resisting, or impeding certain officers or employees

(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; …

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.

The gist of the statute is proving the defendant acted forcibly to do one of the verbs the statute uses—here, the government seems focused on the notion that the ICE employees were being interfered with by the congresswoman as they tried to perform their duties.

Only certain types of people qualify as victims under this statute. This is what makes this a federal crime as opposed to a more generally applicable state assault crime. Assault becomes a federal crime when the victim is someone designated in section 1114 of Title 18, which includes “any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance.” The victims in this case clearly meet the criteria.

What qualifies as an assault? New Jersey is in the Third Circuit Court of Appeals. Like most of the federal circuit courts across the country, its judges have agreed upon a booklet of “pattern jury charges”—language a district judge may use with confidence when explaining to a jury what the government must prove to get a conviction on specific charges. But the Third Circuit’s instructions don’t include any provision specific to the crime Congresswoman McIver is charged with, so we have to turn to provisions from other circuits. Although they aren’t technically binding, they are still very authoritative versions of what the law of assault is, and it’s likely Judge Semper would rely on them if this case makes it to trial.

The Eighth Circuit Model Jury Instructions explain the crime of assault, defining it as “any intentional and voluntary attempt or threat to do injury to the person of another, when coupled with the apparent present ability to do so sufficient to put the person against whom the attempt is made in fear of immediate bodily harm.” That’s the core of the crime; the defendant doesn’t have to actually land a punch or even touch the victim, so long as the defendant makes:

• an intentional and voluntary

• attempt or threat to injure another person

• and it appears to that person that the defendant has the “present ability” to carry out the threat

• leaving the victim in fear of “immediate bodily harm.”

There is a wide range of seriousness among assault crimes, all the way from misdemeanor charges to serious felonies like assault with a deadly weapon or the intent to kill. This is a midrange assault crime.

The Eleventh Circuit’s pattern jury instructions include a charge that would fit this case quite well. It’s a charge for assaulting a federal officer without using a deadly weapon, and it’s likely that a jury, if the case were to get far enough along for one to decide the case, would hear something along their lines:

It’s a Federal crime to forcibly assault a Federal officer [causing physical contact] [intending to commit another felony] while the officer is performing official duties.

The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: (1) the Defendant “forcibly assaulted” the person described in the indictment; (2) the person assaulted was a Federal officer performing an official duty; and (3) the Defendant’s acts [resulted in physical contact with the person assaulted] [involved the intent to commit another felony].

A “forcible assault” is an intentional threat or attempt to cause serious bodily injury when the ability to do so is apparent and immediate. It includes any intentional display of force that would cause a reasonable person to expect immediate and serious bodily harm or death.

The Government must prove beyond a reasonable doubt that the victim was a Federal officer performing an official duty and that the Defendant forcibly assaulted the officer.

The congresswoman issued a statement after she was charged, branding the charges as “a brazen attempt at political intimidation.” The strength of the government’s case remains to be seen. They will have to convince every member of the jury that the congresswoman is guilty, beyond a reasonable doubt, in order to obtain a conviction

Cases like this almost always turn on the facts—did the defendant actually strike the victim, or was it a swing and a miss, in which case it could turn out to be a simple assault, a misdemeanor. The government put out video early here, but there may be more, and sometimes what appears to be the case in one video proves to be wrong when you see an event from multiple angles. Both sides will be searching for anyone who had their phone camera pointed at the fracas.

Wiser prosecutors would likely have exercised their discretion to decline prosecution, while encouraging a conversation among all parties involved to avoid future problems —a conversation that would have been respectful of the role members of Congress play in this matter. But that is neither the approach nor the perspective of DOJ officials in this administration. Like she did in her prior role as his personal attorney, interim U.S. Attorney Alina Habba appears focused on playing to her audience of one and ensuring he approves of her actions, without regard for how others, including judges in the cases she's involved in, perceive them. After all, it’s gotten her this far.

We’re in this together,

Joyce