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Separation of Powers

Prosecution of Congresswoman for Assaulting and Impeding Federal Officials at ICE Delaney Hall Detention Facility Can Continue

Eugene Volokh | 8.26.2026 6:02 PM

Some excerpts from the long opinion in U.S. v. McIver, written by Third Circuit Judge Cindy Chung and joined by Judges Stephanos Bibas:

Congresswoman McIver represents New Jersey's 10th Congressional District in the United States House of Representatives and serves on the Committee on Homeland Security. On May 9, 2025, Congresswoman McIver and two other Representatives conducted an unannounced congressional oversight inspection of Delaney Hall Federal Immigration Facility, pursuant to statutory authority…. Upon arrival, Congresswoman McIver and the other Representatives entered through the security gate into the secured exterior area of the facility. They proceeded inside Delaney Hall and waited for over an hour in the facility's administrative office.

During that time, Newark Mayor Ras Baraka and his security detail arrived at Delaney Hall and they were allowed through the security gate into the secure exterior premises of the facility. Meanwhile, dozens of protestors and media members had amassed outside the security gate.

{We draw these facts from the Indictment, from evidence in the record, and as set forth by the District Court in its opinions. We accept as true the facts alleged in the Indictment for purposes of considering a motion to dismiss. Neither party challenges the facts as set forth by the District Court.}

The Homeland Security Investigations ("HSI") Special Agent in Charge in New Jersey (referred to in the Indictment and by the District Court as "Victim-1" or "V-1") approached the Mayor inside the security gate and advised him that he was not allowed on the premises, ordered him to leave, and told him he would be arrested if he did not comply. At that time, Congresswoman McIver and the two other Representatives left the administrative office and walked toward the security gate, where the Mayor was speaking with Victim-1. Victim-1 directed the Mayor and his security detail outside of the Security Gate to the unsecured area outside the facility, and Congresswoman McIver and the two Representatives began to walk back towards the administrative office.

Moments later, Victim-1 informed a group of federal agents that the United States Deputy Attorney General had authorized the Mayor's arrest, and the agents exited the secured premises and approached the Mayor and his security detail. Upon observing this, the Congressional delegation also proceeded into the unsecured area. An unidentified member of the crowd yelled, "circle the Mayor," and some protesters, as well as Congresswoman McIver and the two Representatives, encircled the Mayor as Victim-1 and the other agents pushed their way through the crowd to apprehend him.

Video surveillance shows Congresswoman McIver placing herself between the Mayor and Victim-1. The Indictment states that Congresswoman McIver then "slammed her forearm into the body of V-1" and "reached out and tried to restrain V-1 by forcibly grabbing him."

Victim-1 then handcuffed the Mayor and led him toward the security gate through a dense group of protesters. In the meantime, Congresswoman McIver and one of the Representatives also moved towards Delaney Hall to reenter the secured area. The Indictment then describes Congresswoman McIver as "push[ing] past" an ICE Deportation Officer (referred to in the Indictment and by the District Court as........

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