The Third Circuit mostly rejected LaMonica McIver’s appeal of Jamel Semper’s ruling from last November that she was not immune from charges that she assaulted the ICE goons who were impeding her efforts to conduct an oversight visit to Delaney Hall. Judge Cindy Chung (appointed by Biden) bumped one of three charges back to Semper, but otherwise rejected the rest.
In his dissent, Clinton appointee Thomas Ambro makes a far more interesting argument: Not just that Semper’s ruling on selective and vindictive prosecution was flawed, but that the Circuit should reconsider that decision by invoking collateral order doctrine.
Here’s how he made the case that politicized prosecutions of members of Congress could effectively eliminate Speech and Debate in all but name.
When “the legal and practical value” of a right “would be destroyed if it were not vindicated before trial,” the collateral order doctrine gives appellate courts the power to vindicate that right while their review still matters. Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989) (quoting United States v. MacDonald, 435 U.S. 850, 860 (1978)). These atypical cases arise when “the issue presented is in ‘danger of becoming moot upon conviction and sentence.’” United States v. Mitchell, 652 F.3d 387, 397 (3d Cir. 2011) (quoting Flanagan v. United States, 465 U.S. 259, 266 (1984)).
As the Government acknowledges, “this is not a typical case.” Transcript of Oral Argument at 33. Despite a surface-level resemblance, the Supreme Court’s reasoning in United States v. Hollywood Motor Car Co., 458 U.S. 263 (1982), is far removed from cases involving potentially retaliatory criminal prosecutions against Members of Congress. In Hollywood Motor Car, the defendants sought vindication only of a statutory procedural right to move for a change of venue. Id. at 263–64. On one side of the ledger, the Supreme Court noted that vacating the conviction and retrial “normally are adequate means of vindicating the constitutional rights of the accused.” Id. at 268. On the other side, it worried about expanding the collateral order doctrine to cover “numerous other questions” that would cause “the policy against piecemeal appeals in criminal cases” to “be swallowed by evermultiplying exceptions.” Id. at 270.
Both sides of the ledger are quite different in this case. By the time the retaliatory prosecution of a legislator reaches final judgment, she and likeminded lawmakers will have been irreparably deterred from fulfilling their constitutional roles as checks on executive power. Indeed, the Executive can successfully intimidate its coequal branch—Members of which are not permitted to solicit pro bono legal counsel—without ever reaching final judgment at all. These prosecutions also inflict ongoing injuries to our representative government by “inevitably impair[ing]” the Member’s ability to represent constituents. United States v. Myers, 635 F.2d 932, 936 (2d Cir. 1980).
“Against these weighty concerns is only the traditional interest in judicial efficiency that normally precludes piecemeal appeals.” Id. But there is no real risk that the usual rule will be swallowed up by excepting “the extremely small class of criminal cases brought against Members of Congress.” Id. Moreover, “it seems likely that when such cases arise,” many of them will—as here—also raise “appeals grounded on the Speech or Debate Clause,” which we would have to hear anyway. Id.; see, e.g., United States v. Rose, 28 F.3d 181, 182 (D.C. Cir. 1994); United States v. Rostenkowski, 59 F.3d 1291, 1294 (D.C. Cir. 1995).
Potentially retaliatory prosecutions of sitting Members of Congress are exceedingly rare. But when they do occur, the constitutional foundation of our government is at risk. Cases of such exceptional importance and rarity fit squarely within the collateral order doctrine.2
The majority chooses not to recognize these cases as extraordinary. Real harm results from that choice. We are now forced to leave uncorrected the analytical flaws in the District Court’s denial of discovery
2 Moreover, these cases are readily identifiable. Courts need only ask three questions: (1) Is this a criminal case against a sitting Member of Congress? (2) Is the appealed order a denial of a motion to dismiss the indictment on grounds of selective or vindictive prosecution? And (3) do the selective or vindictive prosecution claims allege political retaliation? Only if all three answers are “yes” would the case fit this category. [my emphasis]
He then describes all the evidence McIver submitted over a year ago, in her original motion, that DHS was retaliating in a bunch of malign ways against people who stood up against ICE goons.
The Government’s stated justification for prosecuting Congresswoman McIver is that she physically assaulted DHS agents. She contends this is a pretext for its actual goal: to retaliate against her for exercising her oversight authority over DHS and to chill legislative oversight in the future. The Government has not identified a single other case where a defendant was charged under 18 U.S.C. § 111(a) for comparably minimal physical contact. And Congresswoman McIver cites evidence of DHS’s opposition to oversight, including its “‘inexplicable delay’” of her inspection of Delaney Hall. App. 19. She notes that, in the same month, two other Democratic officials were also forcefully detained while investigating DHS activities. The following month, DHS implemented policies restricting congressional access to immigration detention facilities. A district court has since issued a temporary restraining order preventing the policies from going into effect, determining they were likely unlawful. Neguse v. U.S. Immigr. & Customs Enf’t, 822 F. Supp. 3d 86, 112–15, 118 (D.D.C. 2026). Finally, Congresswoman McIver presents DHS press releases repeatedly disseminating falsehoods about the incident here, including untrue claims that, “as a bus of detainees was entering the security gate,” Members of Congress and protestors “stormed the gate and broke into the detention facility” in a “bizarre political stunt” and that two Members had “holed up in a guard shack.” Members of Congress Break into Delaney Hall Detention Center, DHS (May 9, 2025), https://perma.cc/G6MH-2KXF See also DHS Debunks Fake News Narratives About Law Enforcement During Police Week, DHS (May 16, 2025), https://perma.cc/9XKE-3K3U DHS Announces ICE Law Enforcement are Now Facing an 830 Percent Increase in Assaults, DHS (July 15, 2025), https://perma.cc/7YZP-PGWS
The District Court did not consider any of this evidence. It decided that “DHS statements and actions are irrelevant” because they do not “‘involve anyone making prosecutorial decisions and [are] thus not a proper consideration for a vindictive prosecution motion.’” United States v. McIver, 809 F. Supp. 3d 221, 252 (D.N.J. 2025) (quoting Gov’t’s Opp’n to Mot. to Dismiss, 41).
That reasoning is untenable. There is no basis for a categorical rule blinding courts to all non-prosecutor statements.
I had already been thinking, a lot, about McIver’s prosecution in recent days, as I reviewed the three dozen fabricated assault claims DOJ then used to try to criminalize all opposition to ICE in Minnesota. At least three Americans have been shot since last August for their opposition to ICE, two of them killed. Six Democrats in Chicago were charged with conspiracy because an ICE goon drove into their peaceful protest. Fifty people in Minnesota have been charged because of their opposition to ICE (a hundred if you include Cities Church).
Meanwhile, tactics DOJ first tried with McIver have been used in other retaliatory prosecutions. There was the online mob that demanded and got the politicized prosecution, the prosecutor installed just for that kind of job, Trump’s refusal to follow the law on US Attorneys, especially those carrying out his dirty work, the direct involvement of Todd Blanche, the disappearing bodycams, the refusal to search DHS communications we’ve since learned are riddled with cheating.
It all happened with McIver before it happened to many others, and since then we’ve got accumulating evidence of the systematicity of it all.
And one point Ambro made — that members of Congress cannot, for sound ethical reasons, accept pro bono legal services, illustrates the effect of this all. McIver’s legal fees are something that has come up in profile (free link) after profile after profile of her.
In the first weeks after the incident, many of her colleagues tried to help by donating some of their campaign money to help pay her legal fees, hosting fund-raisers or sending emails on her behalf. While a small group of members still offer her moral support, she said that the aid has petered out over time.“
It’s become more difficult,” she said. “Other bad things are happening; other members are being attacked. They moved onto the next awful thing, because they have plenty to choose from.”
Unlike some of Trump’s other prominent targets, she’s not rich and doesn’t have the treasure chest of a potential presidential candidate. She ranks 358th among Members of Congress for net worth.
And so since that legislative visit on May 9, the Congressperson representing Delaney Hall, one of the most problematic ICE cages, has been forced to pay a million dollars in her effort to prove that the tussle ICE goons intentionally created does not amount to assault on her part.
And one point, Ambro is wrong. Potentially retaliatory prosecutions of sitting Members of Congress are no longer exceedingly rare. They’re going up, and it’s hard not to believe that the McIver prosecution is a test for the fascists like so much else.
If you can physically assault and then fine a member of Congress every time she tries to exercise oversight, then the ability to conduct that oversight becomes radically constrained.
OT, but a federal judge (Trump appointed) in Texas has denied Minnesota’s request to extradite Christian Castro, an ICE agent who shot someone through a door and lied about there being a struggle preceding that. The Constitution is ironclad on the duty of states to render up someone charged of a crime in another state. But, apparently we don’t go by that old thing anymore. Texas gets to analyze whether the guy is really a “fugitive” whenever they get around to it. Meanwhile, it seems Christian will be released to flee to Mexico where he plans to marry his girlfriend and live.
Courts are bad at spotting patterns unless either it is officially certified as a class-action lawsuit (exceedingly hard and being made harder) or the tenth time or so that a particular party or an attorney has acted in bad faith in their actual courtroom. All else is motivated reasoning to avoid dealing with “zealous advocacy” versus abuse of the legal system (often via power or wealth). And motivated reasoning is a powerful drug.
The courts are not going to save us, and may end up destroying us. There are enough trumpy Heritage Foundation judges who are true believers to very possibly prevent us from even voting. After all, ‘original’ voters had to be property owners and male.