Trump DOJ charges a Democratic congresswoman

Another abuse of the justice system?

(GSA)

By Mimi Rocah

This week, the Justice Department charged a New Jersey congresswoman, LaMonica McIver, with assaulting federal agents during a clash on May 9 outside a Newark immigration detention center. As her attorney, Paul Fishman, said, the decision to charge the congresswoman sure seems “spectacularly inappropriate” given all of the surrounding facts and circumstances.

Alina Habba, the interim U.S. Attorney for New Jersey, initially brought misdemeanor trespass charges against Newark mayor Ras Baraka that arose from the same episode, but those charges were quickly dropped. In a hearing on Wednesday formalizing that dismissal, federal magistrate Judge Andre Espinosa excoriated Habba for this “embarrassing retraction” because the U.S. Attorney’s Office had not properly investigated the case before bringing charges. The judge reminded Habba that the office must “operate with a higher standard.” The criminal complaint against the congresswoman alleges that she “slammed her forearm into the body” of a Homeland Security investigations agent and pushed and “used each of her forearms to forcibly strike” another agent. The case has become a political firestorm, and though there is footage of the relevant events, the full video has not been released. What has been released is chaotic and subject to distortion. The government’s version of events is disputed by the congresswoman, the mayor, and others. The conflicting facts will play out in the court system.

My goal here is not to weigh or debate the substance of the charges when I (or any of us) do not have all of the facts. Rather, I’d like to put the charges in a broader context that raises serious questions about their legitimacy and motive.

First, let’s be clear: Actual assaults on federal officers trying to legitimately enforce the law should be prosecuted. I was involved with many such prosecutions. But we cannot ignore that this administration, which claims to be even handedly “backing the blue,” is the same administration that pardoned and commuted the sentences of more than 1,000 of individuals including those who violently attacked officers on Jan. 6, 2021, called their prosecutions a “grave national injustice,” and is planning to pay a $5 million dollar settlement to the family of one of the rioters. This clear double standard—we will prosecute x crime unless it is committed by our supporters or especially if committed by the political opposition—is decidedly undemocratic.

Surrounding the charges against McIver is Habba’s spectacularly inappropriate and politicized conduct, which calls into serious question her motives. Charging a sitting congresswoman—who was clearly acting within the scope of her official duties in conducting federal oversight while visiting the detention facility—is a big deal. And yet, the charges do not appear to have complied with the Justice Manual’s requirements for charging members of Congress—including approval from the Public Integrity Section of DOJ (PIN)—that have been strictly abided by under previous administrations, both Democratic and Republican. In fact, the Trump administration appears to be considering eliminating PIN altogether after having already proposed cuts that would largely dismantle it. Why? Because it is an independent, nonpartisan check on the improper use of the DOJ for political purposes. Instead of career prosecutors handling politically sensitive investigations, this administration would rather have investigations overseen by political appointees willing to act for the president’s political benefit.

Shortly after Habba’s appointment as the temporary lead prosecutor for New Jersey, she said—out loud—that she was going to use what is supposed to be an apolitical position as U.S. Attorney for political purposes: “We could turn New Jersey red…. And I think New Jersey is absolutely close to getting there. So hopefully while I’m there, I can help that cause,” she told a conservative talk show host recently. She has also inserted herself personally into criminal investigations. For example, she participated in an immigration-related raid in Newark, personally escorting some defendants to law-enforcement vehicles after they had been handcuffed—something almost never seen and which could have legal consequences for the case. She also has announced criminal investigations into other Democratic political leaders such as—you guessed it—the Democratic governor and attorney general of New Jersey. The announcement alone is unusual because prosecutors do not usually let targets and subjects know they are coming.

The administration that claims to be de-weaponizing DOJ has also dismissed charges against New York Mayor Eric Adams, a political ally of Trump’s, and has targeted Andrew Cuomo, a former governor and current political rival to Adams. Taken together, one thing is clear: At a minimum, the appearance of abuse and impropriety is real. Lurking beneath the appearances are indications of actual use of DOJ’s powers for political purposes—generally and specifically in McIver’s case. It’s not that elected officials can’t or shouldn’t be investigated or charged with crimes—the DOJ under President Joe Biden, for example, charged and convicted Democratic Sen. Robert Menendez with corruption. He was later sentenced to 11 years in prison. But when an administration repeatedly announces investigations and charges against members of only one party, applies double standards, and protects allies of the president, the purpose and independence of DOJ are gone.

As Judge Espinosa so eloquently told Habba said in the hearing dismissing the charges against Baraka, "Your role is not to secure convictions at all costs, nor to satisfy public clamor, nor to advance political agendas. Your allegiance is to the impartial application of the law, to the pursuit of truth and to the upholding of due process for all.”

Mimi Rocah was the district attorney of Westchester County, New York, from 2021 to 2024 and was a federal prosecutor from 2001 to 2017.

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