Across the country, a new defense is being heard in state and federal courtrooms. From Democratic members of Congress to judges to city council members, officials claim that their official duties include obstructing the official functions of the federal government. It is a type of liberal license that excuses most any crime in the name of combating what Minn. Gov. Tim Walz called the “modern-day Gestapo” of the Immigration and Customs Enforcement (ICE).
The latest claimant of this license is Rep. LaMonica McIver (D-NJ), who was charged with assaulting, resisting, and impeding law enforcement officers during a protest at Delaney Hall ICE detention facility in Newark, New Jersey. McIver is shown on video forcing her way into an ICE facility and striking and shoving agents in her path.
This was not a major incursion, but these state and federal officials joined a mob in briefly overwhelming security and breaching the fence barrier after a bus was allowed through the entrance. Federal officials were able to quickly force back the incursion.
McIver and House Democrats insisted that McIver’s forcing her way into the facility might be trespass and assault for other citizens, but she was merely exercising “legislative oversight.” Rep. Alexandria Ocacio-Cortez (D., N.Y.) declared “You lay a finger on someone – on Bonnie Watson Coleman or any of the representatives that were there – you lay a finger on them, we’re going to have a problem.”
Rep. Eric Swallwell (D., Cal.) promised more such actions: “I promise you there’s gonna be more un-noticed visits by my colleagues where they show up and they better be let in.”
Minority Leader Hakeem Jeffries (D., N.Y.) even ominously warned the federal government that Democrats would bring down the house if it tried to charge McIver: “It’s a red line. They know better than to go down that road.”
Well, the red line was crossed in a big way after Acting U.S. Attorney for the District of New Jersey Alina Habba charged McIver with a felony under Title 18, United States Code, Section 111(a)(1).
The ACLU called the charge “authoritarianism” and insisted that these state and federal politicians “have every right to exercise their legally authorized oversight responsibilities for expanded immigration detention in New Jersey.”
The problem with the oversight claim is that McIver’s status as a member of Congress does not allow her access into closed federal facilities. Congress can subpoena the Executive Branch or secure court orders for access. However, members do not have immunity from criminal laws in unilaterally forcing their way into any federal office or agency.
If that were the case, Rep. Alexandria Ocacio-Cortez would not have posted images of herself crying at the fence of an immigrant facility, she could have climbed over the fence in the name of oversight.
Conversely, Republicans in the Biden Administration could have simply pushed their way into the Justice Department to seek the files on the influence-peddling scandal.
Yet, the point of the claim is less of a real criminal defense and more of a political excuse.
It is the same claim being heard this week from Worcester City Councilor Etel Haxhiaj who was shown in a video shoving and obstructing ICE officers attempting to arrest a woman on immigration charges. Two other individuals (including a Democratic candidate for a school board) were arrested, but not Haxhiaj who claimed that she was merely protecting “a constituent.” After the melee, the city manager issued an order preventing city police from assisting in any way in the carrying out of such civil immigration enforcement efforts by the federal government.
Even judges are claiming the same license. In Wisconsin, Judge Hannah Dugan has been charged with obstructing a federal arrest of an illegal immigrant who appeared in her courtroom. Dugan heard about agents waiting outside in the hallway to arrest the man and went outside to confront the agents. She told them to speak to the Chief Judge and that they needed a different warrant.
The agents complied and the Chief Judge confirmed that they could conduct the arrest. In the interim, however, Dugan led the man out a non-public door and facilitated his escape (he was arrested after a chase down a public street).
Judge Duggan also claimed that she was carrying out her duties even though her hearing was over, the charges were not part of state matter, and the arrest was being carried out outside of her courtroom. She was declared “a hero” by Democratic politicians and pundits.
As Democratic leaders like Walz engage in rage rhetoric and paint Republicans (and federal law enforcement) as Nazis, political violence is on the rise across the country. Many of the people burning Teslas and engaging in such crimes claim the same type of license that the ends justify the means. That includes affluent professionals who are now shoplifting from Whole Foods as a “protest” against Jeff Bezos meeting with Trump.
When the Administration sought to investigate those burning Teslas and dealerships, Rep. Dan Goldman (D., N.Y.) denounced it as a “political weaponization” of the legal system. The comments suggest that such arson is somehow a form of political expression on the left.
House Minority Leader Jeffries was correct that a “red line” was crossed but not the one that he was thinking of in threatening consequences for any charges. The red line is the one separating political expression and criminal conduct.
Border Czar stressed repeatedly to political leaders that they can protest and refuse to help but “you can‘t cross the line” into obstruction and interference with their operations.
If oversight means that members can force their way into any federal facilities, we would have 535 roaming inspectors general who could wander at will through the executive branch.
Rep. McIver would be better to claim a different type of oversight, in allowing her passion to briefly overwhelm her judgment in rushing into the facility.
In the end, however, McIver and Duggan may have a license of a different kind.
Both have the advantage of being charged in liberal districts where they would appear before sympathetic jurors. They need to just convince a single jury to engage in “jury nullification,” to vote based on the cause, not the crime, in the case.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
A shorter version of this column appeared in the New York Post.
Jonathan Turley said, “From Democratic members of Congress to judges to city council members, officials claim that their official duties include obstructing the official functions of the federal government.”
Remember that one time, when a group of Republicans broke off from a Trump rally, in which he told them to “peacefully let their voices be heard”, walked down to the Capitol, and were allowed in by Capitol police? Remember how most of them walked around like tourists and took selfies, but a small group broke away and tried to force their way onto the Senate floor to protest the certification of the election, and how police shot one of the protestors? Remember how most their lives were ruined, and even those who just took selfies, and were charged with simple trespass or illegally parading, were thrown into solitary confinement, and Democrats across the country accused the entire Republican Party of insurrection, and claimed that guy with the bison horns, who told everyone to be peaceful and not break anything, was actually trying to overthrow the government?
Remember how Maxine Waters told her followers to go out and make a crowd, and make sure Republicans know they aren’t welcome anywhere, anymore, but how Trump was accused of treason for telling his followers to “peacefully let their voices be heard”?
Democrats are allowed to loot, riot, commit arson, and actively interfere with law enforcement, local, state, and federal government. They have repeatedly interrupted Congress, and SCOTUS confirmation hearings. I’m surprised there isn’t a gift shop dedicated to Handmaid Tale costumes. They are allowed to openly call for the assassination of a Republican president.
Republicans will be thrown into an oubliette and accused of treason if they illegally parade and interfere with Congress.
The lack of critical reasoning in most of the public on this dual society is astonishing.
the Bastille July 14, 1789
does hx repeat?
If oversight means that members can force their way into any federal facilities, we would have 535 roaming inspectors general who could wander at will through the executive branch.
As I wrote above, we do have that. Federal law says so. Not anywhere in the executive branch, just ICE facilities that are used to detain people.
I hate to admit that George is actually closer to being correct than John is. The congressman can show up and claim oversight, but that entails going to the front lobby or the check-in area present credentials and be escorted around the facility.
What they actually did was show up as part of a protesting mob and rush in on through an unauthorized gate, and seem to only claimed oversight after the fact,
The best example I can come up with is a building inspector can’t do an inspection by entering through the loading dock and just wander around. They go to the building lobby check-in show their credentials and then are escorted around the premises
Judge Duggan also claimed that she was carrying out her duties even though her hearing was over,
No, it wasn’t. It hadn’t even started. The prosecutor (who didn’t know what the defendant looked like) was surprised to find he had disappeared. There were witnesses waiting to testify against him.
Actually she’s suspended the hearing which the prosecutor wasn’t even aware of
The problem with the oversight claim is that McIver’s status as a member of Congress does not allow her access into closed federal facilities.
Sorry, Prof T, that is just not true. Federal law requires all members of Congress to be admitted into any ICE facility used to detain people, at any time of day or night, with no notice required, just by invoking the magic word “oversight”.
So yes, when she and her two colleagues showed up at the facility unannounced, they were were entitled to be admitted, and they were. But Ras Baraka wanted to tag along with them, and he had no right to admission, so he was refused. A brawl ensued, in which McIver assaulted multiple officers. That’s a felony regardless of her right to admission. The other two congressmen don’t seem to have assaulted anyone, so they haven’t been charged.
Understand that President Trump has one ‘power’ which no one has been seriously talking about but if things continue as they have been and get much worse, he will use his power to declare martial law.
The Democrats are bluffing .
He does not have any such power. Martial law can only exist in a district where the courts are unable to function, due to some disaster or war. The moment a court opens its doors, martial law in that district automatically becomes invalid.
And Martial law is not declared by the president, but by the local commander, whoever happens to be in charge of the defense forces in that district at the time of the emergency.
Not entirely true. The Constitution does not define martial law and is silent as to who can impose it. Martial law in common terms refers to instances when a nation’s armed forces step in and assume the governance of an area. Officials most often impose martial law when civilian authority over an area has stopped functioning, like in the case of an insurrection or natural disaster; this is not directly tied to the functioning of the courts, but civilian authority in general. Almost all state constitutions allow the state governor or legislature to impose martial law. However, since the constitution is silent on the issue and the Supreme Court has never specifically ruled that the president or federal government can or cannot declare martial law, that’s still a grey area.
When does the shooting of lawbreakers begin — you want to send a message?
Ano
Stop.
That’s the language of the left.
Not the same Anon, but I’m inclined to agree. There’s only so far you can turn the other cheek until you’re back to facing your enemy. Maybe I don’t agree to the point of shooting them, but at some point we are going to have to start using their tactics against them.
-Rabble.
Professor Turley,
I appreciate your blog and the insights into current legal topics. I also find many of the comments interesting.
I have a suggestion. Is it possible to assign a number or an identification marker of some sort to the “anonymous” comments? There is no particular need to know the person’s name, just know which “anonymous” is making a comment. There is an ever growing number of “anonymous” comments and no easy what to tell who is who.
If there is only one person going by “anonymous” then I suggest he or she get a job, a hobby or take a vacation once in a while. It is either that or “anonymous” is a CCP bot.
I am sure there is a way to do this and it would make reading comments easier to do. For now, I just scroll on by.
I try to at least sign all my comments. I usually comment off a work computer, in a building that doesn’t allow PEDs, so any real attempt at making an account is thwarted. I too would like to see other Anons linked to common profiles in some way that also keeps anonymity.
-Rabble
EM
(-:
21st Century America is the constitutionally-lawless “Wild West”.
From Bush DOJ torture attorneys committing legal malpractice (violating Ronald Reagan’s torture treaty) to Trump trying to illegally amend the 14th and 22nd Amendments.
Trump illegally creating tariffs (domaine of Congress) just downgraded America’s credit rating. America no longer has a top credit rating. Our debt interest expenses are greater than the entire military budget. Silence from Congress that actually controls the purse strings!
America is lawless!
Important topics. I suggest you start a website and comment on them.
“From Democratic members of Congress to judges to city council members, officials claim that their official duties include obstructing the official functions of the federal government.” — So I guess January 6th was perfectly acceptable then right ?
I find it strange how Turley seems to avoid commenting on any number of major developments that are central to his area of expertise. The latest is that SCOTUS will not review a major copyright case, not because such a review isn’t warranted on merit, but because so many justices have recused themselves because of potential conflicts of interest stemming from personal business relationships with one of the parties that a quorum cannot be formed. I find this situation unacceptable and intolerable. Lest anyone try to segue the discussion into debate on copyright and trademark law, let me state that as a libertarian and a free market advocate, I do not have sympathy for such regulations, but that is not on point. SCOTUS failures of this kind will only further exacerbate the public’s (rightfully, imo) diminishing faith in our judicial system. In addition, this particular failure could well fuel misguided and/or cynical demands to increase the number of SCOTUS justices as a direct solution to the quorum issue, and I believe such an expansion would be unwise, and potentially worsen other existing SCOTUS issues. I think that the solution is for an internal SCOTUS rule, or possibly legislation, eliminating or strictly regulating acceptance of outside income by SCOTUS justices. The advantage of doing this by legislation would be that it could be applied to all Federal judges, not only SCOTUS justices. While similar issues in lower Federal courts have not made the headlines, I find it very difficult to believe that those issues do not exist, and lack of scrutiny suggests to me that they could be substantially worse at those levels. The argument will likely be made that if judges are restricted from gleaning outside income, they will not be willing to serve in those positions. My rejoinder is to pay them enough to prevent that from becoming an issue. There seem to be ~647 current total Section III Federal judges and justices in the system, who appear to earn annual salaries of $250 – 300,000. That would be a total of ~$200MM/year. That may seem to be a lot of money to you or me, but in US budgetary terms, it is minuscule. We could, and I suggest, should, double or triple that, along with a prohibition of most outside income by Federal judges while in active service, thereby eliminating a potential problem and an actual perception of bias. If even that level of income proved insufficient for a judge or justice to serve, I submit that the primary reason they are serving is to facilitate that outside income, and that they are have thereby disqualified themselves from the bench on the basis of pervasive biases.
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SCOTUS won’t take up copyright case against Ta-Nehisi Coates after five justices recuse themselves
https://justthenews.com/government/courts-law/scotus-wont-take-copyright-case-against-ta-nehisi-coates-after-five-justice
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So judges who write books should allow them to be published for free?! Judges who give speeches should do so for free?! Judges who own businesses should be forced to sell them?! Judges may not own shares, in case one of the companies happens one day to have a case before them?!
Franke.
You still have to follow the law dummy.
Burning cars, hurting a business attacking law enforcement.