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The Justice Department unveiled an accusation against past FBI Director James Comey on Thursday evening, outlining ambiguous claims that Comey provided incorrect statements to Congress.
The accusation comes as no surprise, given that last week, President Donald Trump briefly shared, then took down, what seemed to be a clear directive to Attorney General Pam Bondi to target three individuals he viewed as political adversaries: Comey, Senator Adam Schiff (D-CA), and New York Attorney General Letitia James (D).
Among other aspects, Trump’s communication, posted on his social media platform Truth Social, seems to validate that Erik Siebert, who recently acted as a US Attorney for the Eastern District of Virginia, was dismissed from his position after declining to levy criminal charges against James because his office could not locate substantiation that she had perpetrated any offense. Reportedly, Siebert also communicated to his superiors, before departing the Justice Department, that the case against Comey was unsubstantial.
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Moreover, this isn’t the initial instance of Trump’s Justice Department singling out someone the president perceived as an enemy. Several months prior to Trump inadvertently displaying his message to Bondi, his administration had already brought political accusations against a Democratic member of Congress. Representative LaMonica McIver (D-NJ) is threatened with a maximum of 17 years of incarceration for an occurrence in which she momentarily made physical connection with federal law enforcement officials who were attempting to take into custody another elected Democrat, Newark Mayor Ras Baraka. Although the accusations against Baraka were rapidly dismissed and a federal magistrate jurist characterized Baraka’s apprehension as a “concerning error” — the accusations against McIver are still unresolved.
McIver is being charged under a federal statute that targets any individual who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes” with a federal law enforcement official undertaking their mandated tasks. It is beyond doubt that McIver, who became part of a group of individuals endeavoring to thwart federal officials from seizing Baraka, obstructed or hampered that arrest. However, her actions only constituted a crime if she did so “forcibly,” and the Trump administration’s assertion that she did is quite an overstatement.
Footage of Baraka’s apprehension depicts a disordered scrum where officers repeatedly touched McIver. McIver also touched the officers on a few occasions; in the most noteworthy interaction, she appears to have laid her forearm on an officer who had just unsettled her and pushed him away.
It may be improbable that a jury would find McIver guilty, but the mere actuality that she must engage legal representatives to defend herself places a considerable imposition on her. As dictated by House ethics guidelines, she is prohibited from procuring complimentary legal counsel, therefore she must either individually finance her legal defense — which could amount to hundreds of thousands of dollars or more — or utilize campaign funds to pay her legal representatives.
The Trump administration’s choice to target McIver is so concerning precisely because of these expenses, which threaten to either impoverish McIver or deplete the resources she requires to campaign for office. Even assuming McIver is ultimately found not guilty, the prosecution of LaMonica McIver puts to the test a novel authoritarian stratagem that Trump could potentially employ against any elected Democrat: to bring questionable criminal accusations against them, and compel them to expend their campaign funds, and perhaps even their personal savings, to combat those accusations.
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The accusations against McIver also put to the test a clause within the Constitution, one that is intended to preclude the executive branch from leveraging criminal charges against members of Congress. This clause, as mentioned by the Supreme Court in United States v. Johnson (1966), aims to “prevent intimidation” of members of Congress “by the executive and accountability before a possibly hostile judiciary.” Should the courts not promptly dismiss these charges, it will be a troubling indication that federal lawmakers can no longer depend on the Constitution to defend them from Trump.
The clause within the Constitution, recognized as the Speech and Debate Clause, openly shields members of Congress from litigations and other judicial proceedings that disrupt their mandated tasks. It shields them from detention while Congress is in session, empowers them to journey without harassment to congressional sessions, and it dictates that members “shall not be questioned in any other Place” for “any Speech or Debate in either House.” Nevertheless, its reach is far more extensive than mere speeches and debates amongst members of Congress. As asserted by the Supreme Court in Gravel v. United States (1972), its “fundamental purpose” is “freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.” Furthermore, the Court has construed this clause “broadly to effectuate its purposes,” thus absolving members of Congress from litigations that target their conduct as legislators.
To rephrase, the whole objective of this clause is to forestall the executive branch from utilizing law enforcement to intimidate or disrupt federal lawmakers engaged in their mandated tasks. If Trump can circumvent this clause and pursue accusations against McIver, it will supply him with a new implement to target his political adversaries within Congress.
What underlies the accusations leveled against McIver?
In May, McIver, accompanied by two other members of Congress, arrived at an ICE detention facility situated within her New Jersey district for an oversight tour. This is her prerogative as stipulated under a law that permits federal lawmakers to access immigrant detention facilities “for the purpose of conducting oversight,” and to do so without supplying “prior notice.”
In contrast to immediately complying with the law, the facility seemingly engaged in obstruction. McIver and her two associates, Representatives Bonnie Watson Coleman (D-NJ) and Rob Menendez (D-NJ), were placed within a holding room for a duration exceeding one hour. During this interval, Baraka arrived and also sought a tour of the facility. Although guards initially permitted him to enter the facility’s gate, Baraka was ultimately instructed to depart by about a dozen federal law enforcement officials — the majority of whom were clad in masks and body armor.
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Baraka exited the gate. Initially, this seemed to imply the conclusion of law enforcement’s involvement in this affair. Nevertheless, shortly after Baraka stepped outside the facility, one of the federal officials engaged in a phone conversation with an unidentified person. According to McIver’s legal representatives, video documentation obtained from the government depicts this official turning to his fellow law enforcement agents and announcing, “We are arresting the mayor right now, per the deputy attorney general of the United States. Anyone that gets in our way, I need you guys to give me a perimeter so I can cuff him.”
What followed was bedlam. Around 20 Homeland Security agents approached Baraka to place him under arrest. The three members of Congress, in conjunction with a small assembly of adjacent demonstrators, encircled the mayor to form a boundary between him and law enforcement. Amidst the consequent scrum, law enforcement officials repeatedly touched McIver. At one juncture, while two officials wrested the mayor away from McIver, the Congress member (donning red attire) briefly pushed one of them with her forearm, proclaiming, “Get your hands off of me.”
Disregarding the issue of whether the Speech and Debate Clause shields McIver from being prosecuted for anything she engaged in during this scrum, a criminal trial leveled against her would likely hinge on whether the fleeting interaction she had with a law enforcement official was performed “forcibly.” As stipulated by McIver’s legal representatives in a motion seeking to dismiss this case, should McIver’s interaction with law enforcement constitute a criminal act, it is probable that law enforcement officials who engaged in a similar extent of interaction with her also perpetrated an offense — contravening a statute that forbids assaults against members of Congress.
Predictably, the Trump administration does not aspire to set an example involving the DHS agents who orchestrated a perilous clash between armed law enforcement agents and unarmed elected Democrats — and who seemingly did so under orders from Deputy Attorney General Todd Blanche. (Although the video of the official declaring that Blanche ordered Baraka’s arrest is not publicly accessible, it is detailed within one of McIver’s court submissions. Furthermore, the judge presiding over the case does possess access to the video.)
Blanche’s direct focus was Baraka, the incumbent mayor of New Jersey’s most populous city and a former high school administrator. The notion that his presence at a detention facility posed such a hazard to public safety that the response necessitated 20 federal law enforcement officials is ludicrous. Ultimately, Baraka was only accused of misdemeanor trespass — and these accusations were rescinded in less than two weeks.
At the hearing formally dismissing them, the overseeing magistrate jurist reprimanded prosecutors from the bench, cautioning the Justice Department against “using the immense power of the government to pursue weak cases or to make examples without sufficient cause.”
In other words, the Trump administration appears to have transformed a tranquil encounter wherein McIver and her fellow lawmakers were exercising their statutory entitlements into a heated clash. Subsequently, when the accusations against Baraka rapidly disintegrated, the administration also seems to have pursued a pretext that they could employ to target a different elected Democrat.
But does the Constitution shield McIver from these accusations?
McIver’s legal representatives raise two constitutional objections to Trump’s litigation against her. The initial objection is that she is being selectively prosecuted with the intent of “punishing a Democratic official for her disfavored policy views.”
Selective prosecution cases are notoriously challenging to prevail in, and with sound justification. Federal law enforcement possesses limited resources, and nobody would desire to reside within the sort of all-seeing police state that would be necessitated to prosecute each individual who perpetrates a federal offense. Consequently, both law enforcement agencies and prosecutors unavoidably must make determinations concerning which purported criminal activity to prioritize, and which activity to disregard. Furthermore, the Supreme Court has generally cautioned judges against reevaluating these determinations.
That being stated, in infrequent occurrences, a criminal defendant may contest the accusations levied against them on the premise that they were targeted as a result of their political perspective. McIver’s legal representatives, for instance, allude to a court of appeals case that ruled in favor of anti-abortion demonstrators who were apprehended for inscribing the phrase “Black Pre-Born Lives Matter” on a city sidewalk — notwithstanding that police did not target demonstrators who inscribed the more commonplace phrase “Black Lives Matter.”
McIver’s principal contention is that the Trump administration treated her divergently than the January 6 rioters who stormed the US Capitol in advocacy of Trump, with numerous rioters assaulting law enforcement officials throughout the process. Trump exonerated these offenders, whereas his administration filed felony accusations predicated on McIver’s brief physical interaction with some of the law enforcement officials who carried out Blanche’s ostensible directive to apprehend Baraka.
Additionally, McIver asserts that the DOJ contravened its own guidelines, which “require prosecutors to consult with DOJ’s Public Integrity Section before bringing charges against Members of Congress,” as validation that the litigation against her was politically fueled. The Trump administration’s defense for this absence of consultation is pathetically inadequate. They emphasize that the policy was no longer effective at the time McIver was accused — but that’s on account of the Trump administration suspending it mere days prior to the charges against McIver being filed.
If Trump is authorized to bring legally questionable litigations against Democratic members of Congress, he accomplishes his authoritarian objectives irrespective of whether any of those lawmakers spend a solitary day incarcerated.
Even still, selective prosecution assertions are challenging to prevail in, and any defendant introducing such an assertion confronts a daunting struggle.
McIver’s secondary assertion relies on the Speech and Debate Clause, which the Supreme Court has conventionally interpreted exceedingly broadly to preclude law enforcement from disrupting members of Congress who are engaged in their mandated tasks. Additionally, even Trump’s legal representatives concede that McIver’s visitation to the detention facility, for the purpose of undertaking oversight she is entitled to under a federal statute, was a constituent of her mandated tasks.
Congressional immunity, the Supreme Court explicated in Johnson, arose from Britain’s “history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators.” The Court has repeatedly underscored that it ought to be “read broadly to effectuate its purposes,” which consists of averting “criminal charges against critical or disfavored legislators by the executive.”
Therefore, McIver’s Speech and Debate assertion ought to hinge on whether the chaotic scrum that law enforcement engendered when they executed Blanche’s ostensible directive should be comprehended as a broader undertaking to stymie congressional oversight, or as a separate occurrence that stands independent of the members of Congress’s visitation to the detention facility.
Trump’s legal representatives rely on the Supreme Court’s declaration in Gravel that the Speech and Debate Clause “does not privilege” a lawmaker “to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Envision, as an instance, that amidst her tour of an immigration detention facility, McIver had impulsively unsheathed a knife and stabbed an individual. The actuality that she perpetrated this hypothetical assault amidst an oversight visitation would not shield her from litigation, preponderantly due to the fact that stabbing individuals bears no correlation to her congressional responsibilities.
Conversely, was disrupting Baraka’s apprehension, irrespective of justification, similarly immaterial to her oversight responsibilities?
The United States, thankfully, does not partake in Britain’s history of the executive branch employing criminal law enforcement to intimidate lawmakers. Consequently, there does not appear to be a preexisting judicial antecedent addressing whether the Speech and Debate Clause applies when law enforcement, acting in accordance with the directives of a senior administration official, engenders a strained clash between themselves and a member of Congress who is engaged in oversight.
However, Gravel also maintained that the Clause “recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach” to a lawmaker’s actions. Furthermore, the Court has consistently underscored that this Clause must be construed “broadly” to avert law enforcement from intimidating lawmakers or suppressing their mandated tasks. Thus, McIver’s contention that it applies to her is exceptionally potent.
From the juncture McIver and her two associates arrived at the detention facility, the Trump administration endeavored to obstruct and intimidate them. It postponed their tour of this facility for a duration exceeding one hour, and ostensibly exploited this interval to amass a considerable force of federal law enforcement officials. It subsequently employed this force to expel a Democratic elected official, Mayor Baraka, from the facility subsequent to his preceding admission by a guard. Then, while McIver and the other members of Congress were in proximity, a high-ranking Trump official ostensibly ordered those officials to apprehend Baraka on grounds so unsubstantial that a federal magistrate jurist later reproved the Justice Department for introducing these accusations in the primary instance.
In essence, McIver confronts criminal accusations for actions she engaged in to resist the Trump administration’s endeavors to dissuade her from undertaking congressional oversight. This sort of dissuasion embodies the very identical form of executive intimidation of lawmakers that the Speech and Debate Clause is intended to forestall.
In the absence of the Constitution’s protection, members of Congress are uniquely susceptible to malevolent prosecution
Should Trump have targeted a high-profile critic who does not hold elected office — a journalist, for instance, or perhaps a late-night comedian — that critic might secure complimentary legal representation from an organization such as the American Civil Liberties Union or the Foundation for Individual Rights and Expression, both of which routinely defend individuals who are targeted for exercising their First Amendment entitlements.
However, recall that House ethics guidelines prohibit members of Congress from procuring pro bono legal services. Thus, McIver, who is the inaugural individual within her family to attend college and reportedly carries close to a quarter of a million dollars in student loan indebtedness, must either independently cover her legal expenditures or finance them through her campaign resources. These expenditures are likely to aggregate to hundreds of thousands of dollars or more, even assuming the courts ultimately determine that she is immune from litigation.
In other words, should Trump be permitted to introduce legally questionable litigations against Democratic members of Congress, he attains his authoritarian objectives regardless of whether any of those lawmakers spend a solitary day incarcerated. He either bankrupts numerous of his adversaries and deters other lawmakers from challenging him, or he depletes the campaign reserves that Democrats necessitate to sustain their positions in office.
Meanwhile, Democratic members of Congress constitute a particularly enticing target for an authoritarian president due to their status as some of the most high-profile members within the opposition party, and because they could wield very tangible authority against him upon attaining a majority in either chamber of Congress.
Realistically, the courts are incapable of preventing Trump’s Justice Department from introducing frivolous accusations. However, they are capable of swiftly acknowledging political prosecutions when they do transpire, as the magistrate jurist in Baraka’s case did. Furthermore, they can act promptly to shut them down.
Once more, the comprehensive objective of the Speech and Debate Clause is to “prevent intimidation by the executive and accountability before a possibly hostile judiciary.” Should these Republican courts permit this Republican administration to sustain this litigation against a Democratic lawmaker, then that Clause has failed.
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Source: vox.com
