Rep. LaMonica McIver speaks outside the federal courthouse in Newark on June 25, 2025, after she pleaded not guilty to charges related to a scuffle outside a Newark ICE jail. (Sophie Nieto-Muñoz | New Jersey Monitor)
Lawyers representing Rep. LaMonica McIver in her federal criminal case are seeking a range of documents probing government officials’ discussions of McIver’s party affiliations and policy views — but prosecutors refuse to hand them over, saying she failed to meet the high bar to obtain those records.
McIver (D-10) was indicted in June on three counts of interfering with federal law enforcement authorities during a scuffle outside a migrant detention center in Newark. McIver, who alleges that she is the victim of selective and vindictive prosecution by the Trump administration, is seeking communications from a host of federal officials, including U.S. Attorney General Pam Bondi.
“As we hope is apparent, we have narrowly tailored our proposed scope of discovery to focus on evidence showing that the enforcement and charging decisions in this case were motivated by constitutionally impermissible factors,” Paul Fishman, McIver’s attorney, wrote in a Sept. 3 letter to prosecutors that was made public this week.
Assistant U.S. Attorneys Mark McCarren and Benjamin Bleiberg told Fishman in a Sept. 9 letter that they will not provide the requested documents. They want the judge overseeing the case to rule on the matter.
“Discovery in support of selective prosecution and selective enforcement claims is not provided as a matter of right, and we do not believe your client has satisfied the applicable threshold evidentiary showings required … to compel discovery,” McCarren and Bleiberg said in their letter.
The charges against the congresswoman stem from a May 9 melee outside of Delaney Hall, the detention facility in Newark, that saw federal agents arrest Baraka, claiming he was trespassing. The arrest prompted a scrum as protestors moved to surround Baraka, a Democrat who claimed the jail was operating without proper city inspections and permits.
Authorities announced they were dropping the charges against Baraka days later — prompting a federal judge to admonish them — but moved to charge McIver the same day. The congresswoman and two other members of New Jersey’s House delegation, Reps. Rob Menendez (D-08) and Rep. Bonnie Watson Coleman (D-12), were conducting an unannounced oversight visit at Delaney Hall on May 9, and McIver was among the people who surrounded Baraka as agents tried to arrest him.
In court filings, McIver said an agent was overheard that day saying he was going to arrest Baraka at the direction of the deputy U.S. attorney general. Todd Blanche, who holds that position, is among the officials from whom the congresswoman is seeking records.
McIver is also seeking federal officials’ communications about Baraka’s political affiliation and policy views. McIver’s discovery request seeks a range of communications between high-ranking and other involved officials in the Department of Justice, Department of Homeland Security, and Immigration and Customs Enforcement, along with acting U.S. Attorney Alina Habba and her staff.
McIver has in filings argued the charges against her are politically motivated, citing the government’s dismissal of charges against 160 individuals involved in the Jan. 6, 2021, attack on Congress who were charged with violating the same statute.
Alongside officials’ discussions of McIver and Baraka’s political affiliations, the congresswoman also wants communications about Jan. 6 defendants, procedures and policies related to congressional visits to immigration facilities, and officials’ compliance with a federal policy that requires the Department of Justice’s public integrity section to review potential charges against members of Congress.
Two U.S. Supreme Court cases — United States v. Armstrong and United States v. Bass — create a high bar for selective prosecution discovery requests. Generally, they must show that similarly situated defendants were not prosecuted because of an arbitrary classification.
Armstrong and Bass both involved allegations of selective prosecution based on the defendant’s race.
A separate case decided by the U.S. 3rd Circuit Court of Appeals set a slightly lower bar for obtaining documents about selective enforcement by law enforcement agencies, rather than prosecutors, which allows judges to order limited discovery even when a defendant has not met the bar set in Armstrong and Bass.
District Court Judge Jamel Semper will decide what documents federal officials must disclose. It’s not clear when he’ll make that decision or whether he’ll call the parties to discuss it more fully.
House Republicans moved to censure McIver over her charges last week but were stymied after a handful of GOP members, along with all Democrats in the chamber, voted against the measure. Some other Republicans did not vote, and the censure was tabled by a 215-207 vote.
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