Trump Administration Threatens to Arrest a Member of Congress

In another demonstration of the autocratic practices that have marked the administration of cult leader, convicted felon, and failed President Donald Trump, the interim U.S. attorney for the District of New Jersey, Alina Habba, has announced that she will criminally charge a sitting member of the U.S. Congress. The charges arise from an attempt by three Members of Congress to inspect a recently reopened Immigration and Customs Enforcement detention center in Newark, New Jersey. During the visit, ICE agents arrested Newark Mayor Ras Baraka. The three Representatives, LaMonica McIver — who represents the district in which the detention center is located — Bonnie Watson Coleman, and Rob Menendez, attempted to prevent Baraka's arrest. This resulted in a fracas involving pushing and shoving. Habba has announced charges against McIver for assaulting, impeding, and interfering with law enforcement.

The incident took place on May 9 when the three representatives arrived at Delaney Hall, a privately run federal immigration detention center. Federal law specifically allows Members of Congress to conduct inspections and oversight of immigration detention centers. The three Members of Congress were allowed through the gate of the facility, accompanied by ICE officers. While they were standing in a fenced-in courtyard, Baraka arrived and was allowed through the gate. ICE officers then approached the Mayor and told him that he would have to leave. The representatives gathered around Baraka, stressing that they had the right to be there. ICE officers agreed that the Members of Congress could stay, but said that Baraka would have to leave. Baraka then exited through the gate. Video shows that there was already considerable chaos by that time with protesters outside the gate and the Representatives inside vocally dissenting to Baraka's ejection. Outside the gate, ICE officers approached Baraka to arrest him for trespassing. The Members of Congress surrounded Baraka with McIver putting her arms around him. A lot of pushing and shoving broke out as ICE officers, reporters and photographers, members of the public, and the Representatives struggled in a small amount of space. Video shows multiple ICE officers putting their hands on Representative McIver and there are scenes in which McIver is shown pushing back at the officers. However, in one widely published clip that purports to show McIver shoving an ICE officer, McIver was herself was being pushed from the back and was likely just trying to keep her balance while being shoved into the officer.

After the arrest of Baraka, the Members of Congress complained that they had been assaulted by ICE officers. At the same time, the executive branch put out wildly false versions of what had occurred. To this day, the Department of Homeland Security has a press release claiming that the House members "stormed the gate and broke into the detention facility." This could not be further from the truth given that the gates were specifically opened for the group and ICE officers accompanied them into the center. Baraka was arrested for trespassing despite being allowed into the facility and leaving when requested. He was arrested outside the detention center on public property. Habba's description of the facts when she charged Baraka was completely disconnected from reality, and she dropped the charges on the day that she was required to provide Brady submissions (any exculpatory evidence helpful to the defense). It is unlikely that her charges against McIver will be any more successful.

Habba was a fairly small-time civil litigator, involved mostly in cases dealing with nursing homes and her husband's parking garages when she joined Trump's Bedminster country club. She and Trump became acquainted, and she eventually became part of his defense team. Trump and Habba were fined nearly $1 million for filing a frivolous lawsuit against Trump's political enemies, including Hillary Clinton. After Trump won his second term in office, Habba was appointed as a Counselor to the President. Trump then made her the interim U.S. District Attorney for the District of New Jersey. Habba is an unusual choice for the role given that she has no prosecutorial experience. Moreover, Habba is unusually politically partisan for such a role. When announcing her appointment, Trump stressed Habba's strong ties to him saying, "She has been unwavering in her loyalty, and unmatched in her resolve - standing with me through numerous 'trials,' battles, and countless days in Court." Similarly, Habba also emphasized her commitment to Trump, telling reporters that "As you know, I've stood by President Trump, his family, the [Trump] organization, and many other clients in that state where I've been born and raised". Habba's appointment is indicative of Trump's view of the Department of Justice, which he sees as being his own personal prosecutorial arm. Whereas the Justice Department has normally been expected to act independently and objectively, putting the law and Constitution first, Trump believes that the department should take guidance from him with his personal priorities setting its agenda.

While Habba has issued a press release suggesting that she will charge McIver, and there have been hints that the other two Members of Congress will also be charged, I do not believe that formal charges have been issued yet. Normally, charging a Member of Congress would be a multistep process involving several layers of Justice Department approval. However, just days ago, there were several media reports that the department was dropping its requirement that indictments of Members of Congress first be approved by the Public Integrity Section. Without that requirement, federal prosecutors such as Habba would have an easier time charging public officials. However, while Habba may have more freedom to act, successfully prosecuting a case, especially one like that involving Representative McIver, will not be easy. Indeed, I would not be surprised if Habba struggles even to get an indictment. By all appearances, the threat of charges is primarily meant to generate publicity and intimidate political opponents, especially those in Congress.

I have tried to provide plenty of details of what happened in Newark because I think those details are important to understanding events. However, it is also important to consider the big picture. Attorney General Pam Bondi, following Trump's desire, is operating the Department of Justice almost as if it is Trump's personal law firm, only with prosecutorial powers. Habba is taking that role even further and acting in an openly partisan manner. The Department of Homeland Security, in the meantime, has completely acquiesced to Trump's authority and essentially turned ICE into a modern-day Gestapo. ICE is now an agency that sends masked agents out to grab innocent people from their homes and off the streets. The agency attempts to run secretive detention facilities. What was to be gained by ICE's ordering Baraka out of the Delaney Hall center after he had been allowed in? What was the purpose of arresting him after he had left the premises? The obvious answer is intimidation. To demonstrate what will happen to those who attempt to look over ICE's shoulder. The same is true now in the case of Representative McIver. ICE agents were confident that they could physically put hands on Members of Congress without repercussion. Many of those involved in the pushing and shoving were masked. Black neck gaiters pulled up over the nose have practically become the official ICE uniform these days. This is a group bent on instilling fear, whether that is within the immigrant community or the halls of Congress. Far from being an anomaly, that is exactly what the Trump administration wants.