The opinion
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
Nos. 25-3573 & 26-1122
UNITED STATES OF AMERICA
v.
LAMONICA MCIVER
Appellant
_____________________________
On Appeal from the U.S. District Court, D.N.J.
Judge Jamel K. Semper, No. 2:25-cr-00388-001
Before: BIBAS, CHUNG, and AMBRO, Circuit Judges
Argued: June 24, 2026; Filed: Aug. 26, 2026
_____________________________
OPINION OF THE COURT
CHUNG, Circuit Judge. Congresswoman LaMonica McIver
faces criminal charges for conduct that occurred during her
oversight visit to Delaney Hall, a federal immigration detention
facility. She moved to dismiss the Indictment on the grounds
that the Speech or Debate Clause and the constitutional
principle of separation of powers immunize her from this
prosecution, and because the Government is selectively and
vindictively prosecuting her in violation of her First and Fifth
Amendment rights. The District Court denied the motions, and
Congresswoman McIver appeals. We will affirm as to Counts
One and Two of the Indictment because prosecution of those
charges will not require Congresswoman McIver to answer for
any legislative acts, and we will vacate and remand for the
District Court to further consider Congresswoman McIver’s
motion as to Count Three. We will dismiss the remainder of
Congresswoman McIver’s appeal for lack of jurisdiction.
I. FACTS & PROCEDURAL HISTORY
Congresswoman McIver represents New Jersey’s 10th
Congressional District in the United States House of
Representatives and serves on the Committee on Homeland
Security.1 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. A6; See
Federal Consolidated Appropriations Act (“FCAA”), Pub. L.
No. 118-47, div. C, tit. V § 527(a), 138 Stat. 360, 619 (2024).
Delaney Hall is located in Newark and operated by the United
States Immigration and Customs Enforcement (“ICE”), under
the authority of the Department of Homeland Security
(“DHS”). 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
1
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. See United States
v. Menendez, 831 F.3d 155, 159 (3d Cir. 2016). Neither party
challenges the facts as set forth by the District Court.
2
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.
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. A75; Def. Ex.
I, 0:46-0:50. 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
3
to restrain V-1 by forcibly grabbing him.” A75.
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 “Victim-2” or “V-2”) while “using each of
her forearms to forcibly strike V-2.” A77. Congresswoman
McIver was able to reenter the secured area shortly thereafter,
and she and the other two Representatives then entered the
facility and conducted their oversight inspection.
The Government charged Congresswoman McIver in a
federal indictment with three counts of violating 18 U.S.C.
§ 111(a). Each count incorporated the first 12 prefatory
paragraphs of the Indictment as background and charged that
Congresswoman McIver “did forcibly assault, resist, oppose,
impede, intimidate, and interfere” with a federal official or
officials while the official(s) were “engaged in and on account
of the performance of their official duties.” A78; see A73–78.
The actus reus alleged in Count One was that Congresswoman
McIver “slammed her forearm” into V-1 and tried to restrain
him by “forcibly grabbing him.” A75–76. The actus reus
alleged in Count Two was that Congresswoman McIver
“pushed past V-2 while using each of her forearms to forcibly
strike V-2 as she returned inside of the secured area of Delaney
Hall.” A77. Count Three did not allege a separate actus reus
committed by Congresswoman McIver against a specific
victim; rather, Count Three relied upon the prefatory
paragraphs and charged Congresswoman McIver with forcibly
4
assaulting, resisting, opposing, impeding, intimidating, and
interfering with “HSI Special Agents and ICE Deportation
Officers while said Special Agents and Officers were engaged
in and on account of the performance of their official duties.”
A78. At Oral Argument, the Government stated that the
charged conduct in Count Three encompassed “essentially all”
of Congresswoman McIver’s “efforts to hinder, impede the
arrest of the Mayor,” including those efforts that “started even
inside the gate.” Tr. Oral Arg. 43:5–9.
Congresswoman McIver moved to dismiss the Indictment,
arguing that it violated the Speech or Debate Clause and the
constitutional principle of separation of powers, and that it
constituted selective enforcement and selective and vindictive
prosecution in violation of the First and Fifth Amendments.
The District Court denied the motions.
As to Congresswoman McIver’s Speech or Debate Clause
challenge, it held that the charged conduct was “ambiguously
legislative” under the two-step framework we established in
United States v. Menendez, 831 F.3d 155 (3d Cir. 2016), and,
after analyzing “the content, purpose, and motive” of the
charged acts “to assess [their] legislative or non-legislative
character,” id. at 166, it determined that Congresswoman
McIver’s “predominant purpose,” id. at 173, in engaging in the
conduct charged in each count of the Indictment was non-
legislative, see A22; A55. It thus concluded that the Speech or
Debate Clause did not cover Congresswoman McIver’s
conduct, and she was not entitled to legislative immunity from
the Government’s prosecution.
With respect to Congresswoman McIver’s separation of
powers argument, the District Court concluded that
5
Congresswoman McIver’s case and the case on which
Congresswoman McIver relied, Trump v. United States, 603
U.S. 593 (2024), involved “two separate immunities applicable
to two separate branches of government, scrutinized under two
separate legal standards.” A25. Accordingly, it declined to
dismiss the Indictment under Congresswoman McIver’s
separation of powers theory.
Last, the District Court held that Congresswoman McIver’s
selective prosecution and enforcement claims failed because
Congresswoman McIver had not demonstrated a
discriminatory effect. As to Congresswoman McIver’s
vindictive prosecution claim, the District Court denied her
motion because she “ha[d] not demonstrated that her
prosecution [was] a result of personal animus harbored by the
prosecution,” A40, nor had she shown that the presumption of
vindictiveness should attach, id. at 41–42.2 The District Court
also denied Congresswoman McIver’s requests for discovery
on her selective prosecution and enforcement and vindictive
prosecution claims.
Congresswoman McIver appealed.
II. JURISDICTION
The District Court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under 28 U.S.C. § 1291 and the
2
We refer to McIver’s claims that her prosecution is a
product of selective and vindictive prosecution and
enforcement collectively as the “Targeting claims,” and to the
denial of the related motion to dismiss and for discovery as the
“Targeting denial.”
6
collateral order doctrine to review the District Court’s order
denying Congresswoman McIver’s claims of immunity
pursuant to the Speech or Debate Clause and separation of
powers. See Helstoski v. Meanor, 442 U.S. 500, 506–07
(1979); United States v. McDade, 28 F.3d 283, 288 (3d Cir.
1994).
Congresswoman McIver argues that we have jurisdiction to
review the Targeting denial either under the collateral order
doctrine or through our exercise of pendent appellate
jurisdiction. We disagree. Neither the collateral order doctrine
nor pendent appellate jurisdiction provides a basis for review
at this stage.
A. The Collateral Order Doctrine Does Not Apply to the
Targeting Denial.
The collateral order doctrine establishes that “a district
court order entered prior to final judgment is immediately
appealable if it (1) conclusively determines the disputed
question, (2) resolves an important issue completely separate
from the merits of the case, and (3) is effectively unreviewable
on appeal from a final judgment.” McDade, 28 F.3d at 288;
see Helstoski v. Meanor, 442 U.S. at 506–07 (holding that a
district court’s dismissal of a Speech or Debate Clause claim
constitutes a final decision for purposes of establishing
appellate jurisdiction under 18 U.S.C. § 1291). Although the
Targeting denial satisfies the first two requirements of that test,
the underlying Targeting claims “fail[] the third part of the test
… that the claim ‘be effectively unreviewable on appeal from
a final judgment.’” United States v. Hollywood Motor Car Co.,
458 U.S. 263, 267 (1982) (per curiam) (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
7
“[T]he Court has interpreted the requirements of the
collateral-order exception to the final judgment rule with the
utmost strictness in criminal cases.” Flanagan v. United
States, 465 U.S. 259, 265 (1984). In the criminal context, the
Supreme Court has stated that the collateral order doctrine
applies only when the defendant has asserted a right “the legal
and practical value of which would be destroyed if it were not
vindicated before trial.” Id. at 266 (citing Hollywood Motor
Car, 458 U.S. at 266). Generally, that has involved a
defendant’s right not to be tried, not a right to dismissal. See
Hollywood Motor Car, 458 U.S. at 269. In Hollywood Motor
Car, the Court held that the collateral order doctrine did not
apply to the denial of a motion to dismiss an indictment based
on prosecutorial vindictiveness. Recognizing a “crucial
distinction between a right not to be tried and a right whose
remedy requires the dismissal of charges,” the Court held that
the right at issue could be adequately vindicated on appeal from
a conviction—it was “not one that must be upheld prior to trial
if it is to be enjoyed at all.” Id. at 269, 270. Since then, at least
two other circuits have observed that the collateral order
doctrine does not apply to selective prosecution claims. See,
e.g., United States v. Butterworth, 693 F.2d 99, 101 (9th Cir.
1982) (dismissing interlocutory appeal for lack of jurisdiction
when “[t]he right defendants assert is merely the right to have
the charges against them dismissed if they demonstrate that the
government impermissibly targeted them for prosecution
because they exercised their First Amendment rights”);
Jarkesy v. S.E.C., 803 F.3d 9, 26 (D.C. Cir. 2015) (“Th[e]
general rule against interlocutory appeals encompasses
selective-prosecution claims[.]”).
8
We agree and hold that the conclusion in Hollywood Motor
Car applies to selective enforcement and prosecution claims.
Like vindictive prosecution claims, these claims do not
implicate a right not to be tried, but instead involve only a right
to have charges dismissed if the court determines they were
brought for an impermissible reason. See Hollywood Motor
Car, 458 U.S. at 269; Butterworth, 693 F.2d at 101; United
States v. Armstrong, 517 U.S. 456, 463 (1996) (a selective
prosecution claim is an “assertion that the prosecutor has
brought the charge for reasons forbidden by the Constitution”).
We thus do not have jurisdiction to review the Targeting
denial.
Congresswoman McIver attempts to distinguish Hollywood
Motor Car by arguing that the appellant there sought to secure
a procedural right, not a First Amendment right. In contrast,
she argues, the Targeting claims would be effectively
unreviewable after trial because “the prosecution itself imposes
the relevant constitutional harm—chilling protected
expression, association, and oversight.” Brief for Appellant in
Opposition to Partial Motion to Dismiss Appeal at 16–17,
United States v. McIver, No. 25-3563, Dkt. No. 15 (hereinafter
“Opposition to Partial Motion to Dismiss”).
Congresswoman McIver’s emphasis on First Amendment
harm has little impact on our analysis. First, the Supreme
Court has recognized “only a narrow group of claims” to be
unreviewable after judgment, Hollywood Motor Car, 458 U.S.
at 270, only one of which—the right not to be tried—could
possibly be at issue here, see Flanagan, 465 U.S. at 266; see
also Stack v. Boyle, 342 U.S. 1 (1951) (bail); Sell v. United
States, 539 U.S. 166 (2003) (involuntary medication).
Constitutional harm itself does not establish a right not to be
9
tried; rather, that right must “rest[] upon an explicit statutory
or constitutional guarantee that trial will not occur.” Midland
Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989); see
also United States v. Tucker, 745 F.3d 1054, 1063 (10th Cir.
2014) (“[A] criminal defendant invoking the collateral order
exception must assert a ‘right not to be tried,’ … resting upon
‘an explicit statutory or constitutional guarantee that trial will
not occur.’” (first quoting United States v. Quaintance, 523
F.3d 1144, 1146 (10th Cir. 2008), then quoting Midland, 489
U.S. at 801)); United States v. Joseph, 26 F.4th 528, 533 (1st
Cir. 2022) (“[A] right not to be tried must be explicitly rooted
in a statute or the Constitution.”). The First Amendment does
not explicitly confer a right not to be tried, nor does
Congresswoman McIver cite any statute providing a right not
to be tried.
Second, while we have recognized that the chilling effect
of government action on protected speech may present an
“irreparable harm” that allows for injunctive relief in the civil
context, see, e.g., Anderson v. Davila, 125 F.3d 148, 164 (3d
Cir. 1997), we have not recognized that a criminal
prosecution’s chilling effect on speech renders a defendant’s
First Amendment claim “effectively unreviewable” after trial
and therefore subject to interlocutory appeal. Although
Congresswoman McIver’s argument has “superficial
plausibility,” if it is adopted, “the policy against piecemeal
appeals in criminal cases would be swallowed by ever-
multiplying exceptions,” Hollywood Motor Car, 458 U.S. at
270, as any defendant asserting a First Amendment right as a
basis for dismissal could claim entitlement to immediate
appellate review, see also United States v. Hsia, 176 F.3d 517,
526 (D.C. Cir. 1999) (“[A]ny rule allowing immediate appeals
for defendants advancing some First Amendment reason why
10
an indictment should be dismissed would expose a vast array
of criminal trials to interruption.”).3 In sum, the constitutional
character of the asserted burden imposed by the Government’s
prosecution does not provide a basis to distinguish Hollywood
Motor Car. Congresswoman McIver’s First Amendment
rights can be vindicated after trial, and we do not have
collateral order jurisdiction over the Targeting denial.
Congresswoman McIver also contends that the Targeting
denial is immediately appealable due to the separation of
powers concerns raised, arguing that her prosecution “was a
retaliatory effort against her protected legislative oversight.”
Opposition to Partial Motion to Dismiss at 14. Insofar as
Congresswoman McIver argues that the constitutional
separation of powers principle confers immunity and therefore
a right not to be tried, we address that argument below. To the
extent Congresswoman McIver seeks immediate review
premised on the prosecution’s chilling effect on her
congressional oversight activities as a separation of powers
3
McIver cites United States v. P.H.E., Inc., 965 F.2d 848
(10th Cir. 1992), as support for interlocutory appeal here. In
P.H.E., the panel concluded the collateral order doctrine
allowed it to review the denial of defendants’ motion to dismiss
on the grounds that the prosecution was “motivated by a bad
faith desire to chill the exercise of First Amendment rights.”
P.H.E., 965 F.2d at 854. Even in the Tenth Circuit, P.H.E.’s
vitality is questionable given that the Tenth Circuit has
repeatedly distinguished P.H.E. See, e.g., United States v.
Ambort, 193 F.3d 1169, 1171–72 (10th Cir. 1999); United
States v. Wampler, 624 F.3d 1330, 1340 (10th Cir. 2010). In
any case, we decline to apply P.H.E. here.
11
interest not addressed by the First Amendment, that asserted
chilling harm can be vindicated after trial for the same reasons
set forth above. While Congresswoman McIver addresses the
chilling effect on legislative activity as different in kind than a
chilling of speech in general, only the legislature has the power
to create jurisdiction to address this different, narrower
concern. See, e.g., 18 U.S.C. § 3731 (allowing government
interlocutory appeal of certain district court orders in criminal
cases); 18 U.S.C. APP. 3 § 7 (allowing interlocutory appeal by
government of decisions involving classified information in
criminal cases). We may only exercise jurisdiction where the
Constitution or a statute provides it. Cf. Midland Asphalt
Corp., 489 U.S. at 801. Until such a statutory basis exists, we
have no jurisdiction to immediately review the separation of
powers arguments raised by the Targeting claims, as we are
bound by the collateral order doctrine and final judgment rule.
B. Pendent Appellate Jurisdiction Does Not Provide a
Basis to Review the Targeting Claims.
Congresswoman McIver argues in the alternative that we
may exercise pendent appellate jurisdiction to review the
Targeting denial. The Government counters that pendent
appellate jurisdiction is unavailable in criminal matters. Resp.
Br. at 28 (citing Abney v. United States, 431 U.S. 651, 663
(1977)). Even assuming that the criminal nature of this action
does not foreclose the exercise of pendent appellant
jurisdiction, however, Congresswoman McIver’s argument for
that jurisdiction still fails.
“[P]endent appellate jurisdiction is restricted to two
circumstances: (1) inextricably intertwined orders or
(2) review of a non-appealable order where it is necessary to
12
ensure meaningful review of an appealable order.” Reinig v.
RBS Citizens, N.A., 912 F.3d 115, 130 (3d Cir. 2018) (citation
modified). “Issues are ‘inextricably intertwined’ only when
the appealable issue ‘cannot be resolved without reference to
the otherwise unappealable issue.’” Id. (quoting Invista
S.Á.R.L. v. Rhodia, S.A., 625 F.3d 75, 88 (3d Cir. 2010)).
Review of Congresswoman McIver’s selective and vindictive
prosecution claims is not necessary to the resolution or
meaningful review of her immunity claims, so pendent
appellate jurisdiction is unavailable.
III. STANDARD OF REVIEW
When reviewing the denial of a motion to dismiss an
indictment, “[w]e review the District Court’s legal conclusions
de novo and its factual determinations, including its findings
about the contents and purposes of the acts alleged in the
Indictment, for clear error.” Menendez, 831 F.3d at 164.
Although “review at this stage of a prosecution is ordinarily
limited to the allegations in the Indictment,” the Court “can
consider extrinsic evidence to determine whether the Speech
or Debate Clause applies.” Id.
IV.ANALYSIS
A. The Speech or Debate Clause Does Not Protect
Congresswoman McIver from Prosecution at Counts
One and Two.
1. The Speech or Debate Clause
The Speech or Debate Clause provides that “for any Speech
or Debate in either House,” Members of Congress “shall not
be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1.
13
The “central role” of the Speech or Debate Clause is “to
prevent intimidation of legislators by the Executive and
accountability before a possibly hostile judiciary.” Gravel v.
United States, 408 U.S. 606, 617 (1972) (citing United States
v. Johnson, 383 U.S. 169, 181 (1966)). The Clause’s
protection extends beyond literal speech and debate on the
floor to protect any “legislative activity” performed by a
member of Congress. Menendez, 831 F.3d at 165 (citing
Gravel, 408 U.S. at 625); see also Eastland v. U.S.
Servicemen’s Fund, 421 U.S. 491, 503 (1975) (explaining that
the Speech or Debate clause immunizes actions falling “within
the sphere of legitimate legislative activity”). The Clause also
prohibits the Government from introducing “evidence of a
legislative act” in a prosecution. See United States v. Helstoski,
442 U.S. 477, 487 (1979); United States v. Brewster, 408 U.S.
501, 512 (1972) (“[A] Member of Congress may be prosecuted
under a criminal statute provided that the Government’s case
does not rely on legislative acts or the motivation for legislative
acts.”).
“Whether an act is legislative turns on the nature of the act,
rather than on the motive or intent of the official performing
it.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998); see also
Brewster, 408 U.S. at 525 (“It is beyond doubt that the Speech
or Debate Clause protects against inquiry into acts that occur
in the regular course of the legislative process and into the
motivation for those acts.”); Johnson, 383 U.S. at 184–85 (“a
prosecution under a general criminal statute dependent on such
inquiries”—namely, the defendant Congress member’s
“motives underlying the making of the speech and upon its
contents”—“necessarily contravenes the Speech or Debate
Clause”). The key inquiry is whether the act is “‘an integral
part of the deliberative and communicative processes by which
14
Members participate in committee and House proceedings.’”
Eastland, 421 U.S. at 504 (quoting Gravel, 408 U.S. at 625).
The Speech or Debate Clause does not provide a blanket
protection over “all things in any way related to the legislative
process.” Brewster, 408 U.S. at 516. It does not extend to
“political matters,” for example, nor does it cover activities like
“‘errands’ performed for constituents [and] the making of
appointments with Government agencies.” Id. at 512.
“[I]llegitimate activities such as accepting bribes in exchange
for taking official action” also fall outside the scope of the
Clause’s protection, “[e]ven if these non-legislative acts
involve policy or relate to protected legislative activity.”
Menendez, 831 F.3d at 166. On the other hand, “investigative
activities by lawmakers are protected by legislative immunity,”
Gov’t of V.I. v. Lee, 775 F.2d 514, 521 (3d Cir. 1985), because
“legislative fact-finding” and the “power to investigate” are
“integral part[s] of the legislative process,” id. (citing Eastland,
421 U.S. at 504–05).
The first step of our Speech or Debate Clause analysis
involves “look[ing] to the form of the act to determine whether
it is inherently legislative or non-legislative.” Menendez, 831
F.3d at 166. For acts that are clearly legislative or non-
legislative, “no inquiry into their content or underlying
motivation or purpose is needed to classify them.” Id. For
“ambiguously legislative” acts, or those that are “neither
manifestly legislative nor clearly non-legislative, … we
proceed to the second step of the Speech or Debate analysis,”
where “we consider the content, purpose, and motive of the act
to assess its legislative or non-legislative character.” Id.
2. Count One
15
Count One charges Congresswoman McIver with
impeding, through physical contact, Victim-1’s arrest of the
Mayor. In evaluating Congresswoman McIver’s legislative
immunity claim, the District Court determined that
Congresswoman McIver’s inspection of Delaney Hall
constituted legislative fact-finding, a legislative activity. See
Lee, 775 F.2d at 517. The District Court concluded, however,
that Congresswoman McIver’s “alleged intervention into the
Mayor’s questionable arrest had no cognizable connection to
any legislative function protected by the Speech or Debate
Clause.” A19. The District Court supported this conclusion
by noting that the charged conduct “took place during a brief
time frame before the oversight inspection began, not on the
facility’s premises but in the parking lot outside the Security
Gate.” A19–20.
We agree with the District Court’s conclusion, though we
make an important clarification. To the extent the District
Court based its decision on whether Congresswoman McIver
was physically within the immigration facility’s property or
directly outside of it, we note that her location is not
dispositive. Instead, to determine whether her conduct was
legislative, we focus “on the nature of the act.” Bogan, 523
U.S. at 54. Any conduct Congresswoman McIver took that
was investigative in nature was legislative, whether that
conduct took place inside Delaney Hall or directly outside of
it.
Still, the nature of the conduct charged in Count One is non-
legislative. Congresswoman McIver’s physical contact with
Victim-1 was not “integral” to the “deliberative and
communicative processes by which Members participate in
committee and House proceedings,” Gravel, 408 U.S. at 625—
16
namely, to her inspection of Delaney Hall. This conclusion
would hold regardless of whether Congresswoman McIver had
physical contact with Victim-1 inside Delaney Hall or outside
of it, just as the Speech or Debate Clause protects
Congresswoman McIver’s legitimate legislative fact-finding,
whether such fact-finding occurs on or off the facility’s
property. See Eastland, 421 U.S. at 504–05; Lee, 775 F.2d at
517.
Relying on Lee, Congresswoman McIver argues that her
contact with Victim-1 was legislative because it was part of her
visit to Delaney Hall, which we must consider “as a whole.”
Lee, 775 F.2d at 524–25. We made clear in Lee, however, that
“[t]he inquiry into the [purportedly legislative] trip as a whole
is a function of the government’s decision to frame its
indictment in those terms.” Id. at 525 n.12. In contrast, Count
One charges Congresswoman McIver not for conduct relating
to her entire visit to Delaney Hall, but for conduct during a
specific interaction between her and Victim-1. A75–76.
Accordingly, we disagree that Lee calls for evaluating
Congresswoman McIver’s trip to Delaney Hall “as a whole” in
determining whether Count One charges Congresswoman
McIver for engaging in conduct that was legislative in nature.
Congresswoman McIver next argues that dismissal is
warranted because the Government would need to prove a
legislative act “to make out [its] prima facie case” against her.
Brewster, 408 U.S. at 525. She contends that the
Government’s prosecution “would necessarily involve
evidence of [her] … reasons for being at Delaney Hall.”
Opening Br. 4–5. That argument is unavailing. Count One
charges that Congresswoman McIver interfered with Victim-
1’s arrest of the Mayor through physical contact. “[N]othing
17
in [that Count] requires the Government to prove any
legislative acts at trial.” United States v. James, 888 F.3d 42,
49 (3d Cir. 2018). To the extent Congresswoman McIver’s
membership on the Committee on Homeland Security arises at
trial, we have explained that “proof of legislative status,
including status as a member or ranking member of a
committee, is not prohibited by the Speech or Debate Clause.”
McDade, 28 F.3d at 289. Moreover, Congresswoman McIver
may file motions in limine to exclude evidence of any
legislative action, and if the government presents any excluded
evidence, Congresswoman McIver may move for any remedies
that may be appropriate. See, e.g., United States v. Liburd, 607
F.3d 339, 343 (3d Cir. 2010) (reversing conviction and
remanding “because the government breached an
unambiguous promise not to use ‘any’ statement [the
defendant] made,” impacting the fairness of trial); United
States v. Morena, 547 F.3d 191, 194–97 (3d Cir. 2008)
(reversing conviction and remanding when prosecutor
repeatedly offered unduly prejudicial evidence of prior bad
acts).
Congresswoman McIver also argues that, in defending the
charges, she will be forced to discuss her motives for engaging
in the charged conduct, thus triggering legislative immunity.
She contends that when a prosecution necessitates that a
defendant offer evidence of legislative acts and motive in
defending herself against the charges, the prosecution violates
the Speech and Debate Clause. Tr. Oral Arg. 29:10–15 (citing
McDade, 28 F.3d at 295 n.14). We need not address that
question here, because we have concluded that the specific and
limited conduct charged in Count One is unambiguously non-
legislative. Therefore, even if Congresswoman McIver
chooses to offer evidence addressing why she engaged in the
18
offense conduct, such evidence will not implicate her motive
in taking a legislative action. And, if Congresswoman McIver
chooses to offer evidence that does discuss her purpose in
taking legislative action, the Clause is still not implicated,
because it “protects a member of Congress from being
‘questioned,’ and a member is not ‘questioned’ when he or she
chooses to offer rebuttal evidence of legislative acts.”
McDade, 28 F.3d at 294.
In sum, Count One neither charges Congresswoman
McIver for an act that is legislative in nature nor requires that
she answer for any legislative act. Accordingly, we will affirm.
3. Count Two
Count Two incorporates prefatory paragraphs 1 through 12
of the Indictment and alleges that Congresswoman McIver
“pushed past” and “us[ed] each of her forearms to forcibly
strike V-2 as she returned inside of the secured area of Delaney
Hall.” A77. Like the acts charged in Count One, the acts of
pushing past and forcibly striking someone are unambiguously
non-legislative: they are not integral to the legislative process.
Congresswoman McIver again contends that we should
evaluate the nature of her entire visit to Delaney Hall, not just
the nature of the discrete act charged, in determining whether
Count Two charges her for engaging in legislative conduct.
She reiterates her other arguments as well. These arguments
all fail for the same reasons as above.
Congresswoman McIver also asserts that the government
violated Section 527 of the appropriations statute for DHS by
interfering with her legislative oversight, triggering legislative
immunity and requiring dismissal of Count Two.
19
Section 527(a), she contends, “confers a specific right on
Members of Congress to enter DHS facilities ‘without delay’
to conduct oversight.” Opening Br. 42 (citing FCCA § 527).
Whether government actors’ conduct violated Section 527 is a
wholly different question than whether Congresswoman
McIver’s charged conduct is legislative and protected by the
Clause. Not every separation of powers concern implicates a
Speech or Debate Clause remedy. See, e.g., Neguse v. U.S.
Immigr. & Customs Enf’t, 822 F. Supp. 3d 86, 117 (D.D.C.
2026) (granting members’ motion to stay DHS policy that
likely violated Section 527).
Congresswoman McIver further asserts that, per Section
527, the act of entering a DHS facility “for the purpose of
conducting oversight” is legislative in nature. Opening Br. 42
(quoting FCCA § 527). Section 527 states in relevant part that
“[n]one of the funds appropriated or otherwise made available
to the Department of Homeland Security by this Act may be
used to prevent any [member of Congress] from entering, for
the purpose of conducting oversight, any [detention] facility
operated by or for the Department of Homeland Security.”
FCAA § 527(a) (emphasis added). Count Two does not charge
Congresswoman McIver for entering Delaney Hall, however;
it charges her for pushing past Victim-2 and using her forearms
to forcibly strike him—conduct distinct from, though
occurring during the process of, “return[ing] inside of the
secured area of Delaney Hall.” A77. We have considered the
“nature” of the charged conduct and concluded it is
unambiguously non-legislative. See Bogan, 523 U.S. at 54.
Our dissenting colleague takes a different view. Even if
Count Two does charge Congresswoman McIver for the act of
entering the facility, though, we would again consider the
20
“nature” of that act. Id. Section 527 certainly supports the
conclusion that Congresswoman McIver undertook the act of
entering Delaney Hall to further her legislative duties. But the
Clause does not immunize “all things in any way related to the
legislative process.” Brewster, 408 U.S. at 516. Our inquiry
focuses on whether entering is “an integral part” of
Congresswoman McIver’s oversight activities. Eastland, 421
U.S. at 504 (quoting Gravel, 408 U.S. at 625).
In addressing this question, our reasoning in McDade is
instructive. McDade, 28 F.3d at 298. There, we noted that
Article I, Section 6 of the Constitution provides qualified
protection to legislators during travel to and from Congress by
providing them “freedom from civil arrest” during transit. id.
at 299 (discussing U.S. Const. Art. I, § 6, cl. 1). We further
noted that travel, “although a necessary precondition for the
performance of [legislative] acts, is not an integral part of
Congress’s deliberative and communicative processes.” Id.
(citing Gravel, 408 U.S. at 625). Thus, we concluded that
“travel by a member of Congress to or from a location where
the member performs legislative acts is not itself protected by
the Speech or Debate Clause.” Id. at 298.
Here, nothing in the record indicates that Congresswoman
McIver’s entry into the secured area of the facility was an act
of inspection, rather than simply a “necessary precondition” to
her oversight. Id. at 299. Whether McIver’s legislative and
non-legislative actions are “intertwined,” as our dissenting
colleague contends, might be a closer call if, for example,
Congresswoman McIver asserted that she was observing
Victim-2’s conduct as part of her inspection and contacted
Victim-2 incidentally upon re-entry into the facility as she
leaned forward to read his nametag. Given what she does
21
contend, though, the nature of her conduct in entering the
secured area is analogous to the travel we discussed in
McDade, and not subject to the Clause’s protections. Section
527’s reference to “entering” a detention facility does not
change our analysis. FCAA § 527. Section 527 sets forth
limitations on spending and does not prescribe content for
legislative duties. Its text therefore cannot transform the act of
entering Delaney Hall from a “precondition” to an “integral
part” of Congresswoman McIver’s inspection that day.
Finally, Congresswoman McIver offers a hypothetical to
demonstrate why we should adopt her position. She argues that
without the protection of legislative immunity for acts like
those charged in the Indictment, individuals could
“aggressively restrain” a Congress member from giving a
speech while on the floor, provoke a physical response from
that member in an effort to finish her speech, and then the
Executive could prosecute her without the Speech or Debate
Clause providing any safeguard. Reply Br. 6 (citation
modified). This hypothetical is concerning, but it presents a
heavily fact-bound scenario that is not before us. We are
limited to the facts of Count Two, which charges conduct that
is “clearly non-legislative.” Menendez, 831 F.3d at 166.
The acts alleged in Count Two fall outside the “sphere of
legitimate legislative activity,” so we will affirm. Eastland,
421 U.S. at 501 (quoting Doe v. McMillan, 412 U.S. 306, 312
(1973)).
4. Count Three
Count Three also incorporates the first 12 paragraphs of the
Indictment, which describe conduct both inside and outside the
22
security gate that allegedly prevented the Mayor’s arrest. It
charges Congresswoman McIver with forcibly assaulting,
resisting, opposing, impeding, intimidating, and interfering
with “HSI Special Agents and ICE Deportation Officers while
said Special Agents and Officers were engaged in and on
account of the performance of their official duties.” A78.
Count Three differs from the other two counts, however, in that
it does not assert a specific actus reus. Instead, Count Three
charges Congresswoman McIver for engaging in a range of
conduct covering a broad timeframe and involving numerous
unidentified victims. Indeed, the Government stated at oral
argument that Count Three was intended to charge “essentially
all” of Congresswoman McIver’s “efforts to hinder … the
arrest of the Mayor,” including those efforts that “started even
inside the gate.” Tr. Oral. Arg. 43:5–9.
The District Court did not consider these factual differences
when it analyzed Counts One and Three. Rather, it grouped
Counts One and Three together and focused on the narrower
timeframe when Congresswoman McIver was outside the
security gate. Based on the description at oral argument,
though, Count Three implicates a larger range of conduct and,
at a minimum, paragraphs 10-12 of the Indictment.4 Because
the District Court did not separately assess the nature of the
conduct charged at Count Three, we will remand for the
District Court to consider whether the charged conduct
includes legislative acts and, if so, whether Count Three can
stand when eliminating such protected conduct.
4
Our analysis of Counts One and Two is limited to the actus
reus charged in each count and, like the District Court, does not
address the conduct alleged in the prefatory paragraphs.
23
B. Dismissal Is Not Warranted under the Separation of
Powers Principle.
Congresswoman McIver also argues that the Indictment
violates the principle of separation of powers embodied in the
Constitution. She urges us to extend the Court’s reasoning in
Trump v. United States, relying on its statement that “the
President is absolutely immune from criminal prosecution for
conduct within his exclusive sphere of constitutional
authority,” and that he has “presumptive immunity from
criminal prosecution for … acts within the outer perimeter of
his official responsibility.” Opening Br. 45 (quoting Trump,
603 U.S. at 609, 614). Congresswoman McIver argues that this
reasoning should “appl[y] with equal, if not greater, force to
legislators,” as “legislators, unlike the President, face ongoing
threats of prosecution during their term in office.” Opening Br.
46.
The Court’s reasoning in Trump was specific to the unique
role of the President and the absence of a constitutional
provision explicitly addressing Presidential immunity. The
Court clarified that, “[l]ike everyone else, the President is
subject to prosecution in his unofficial capacity, … [b]ut unlike
anyone else, the President is a branch of government, and the
Constitution vests in him sweeping powers and duties.”
Trump, 603 U.S. at 639–40. Because criminal prosecution of
the President poses the specific danger of chilling presidential
action, id. at 613–15, the Court explained it has “long
recognized” the separation of powers doctrine “as mandating
certain Presidential privileges and immunities, even though the
Constitution contains no explicit provision for [Presidential]
immunity,” id. at 638 (internal quotations marks omitted). In
24
contrast, the Constitution does contain an explicit provision
protecting against the danger of chilling legislative action,
namely the Speech or Debate Clause. Trump does not support
extending further protection to legislators in light of this
explicit provision.
Congresswoman McIver’s separation of powers argument
fails for another reason: it overlooks the limitations on
immunity the Court affirmed in Trump itself. The Court stated
that “[t]he President enjoys no immunity for his unofficial acts,
and not everything the President does is official.” Id. at 642;
see also Clinton v. Jones, 520 U.S. 681, 695 (1997)
(“Petitioner’s effort to construct an immunity from suit for
unofficial acts grounded purely in the identity of his office is
unsupported by precedent.”). Likewise, the Speech or Debate
Clause immunizes legislative acts only. Expanding legislative
immunity to cover a broader scope of conduct would exceed
even the Presidential immunity recognized in Trump. There is
nothing in that case, nor any of the other separation of powers
cases upon which Congresswoman McIver relies, to support
the conclusion that the separation of powers principle calls for
such additional protection to members of Congress. See
Supreme Ct. of Virginia v. Consumers Union of U.S., Inc., 446
U.S. 719, 731–33 (1980); Nixon v. Fitzgerald, 457 U.S. 731
(1982). We decline to adopt Congresswoman McIver’s
reasoning and hold that the constitutional principle of
separation of powers does not afford legislative immunity
beyond the protection of the Speech or Debate Clause.
*****
For these reasons, we will AFFIRM the District Court’s
denial of legislative immunity for Counts One and Two,
VACATE IN PART and REMAND to the District Court for further
25
proceedings as to legislative immunity for Count Three, and
DISMISS the appeal in part for lack of jurisdiction of the District
Court’s order denying dismissal and rejecting the selective and
enforcement prosecution and vindictive prosecution claims.
Counsel for Appellant
Samuel Callahan
Lee M. Cortes, Jr.
John M. Fietkiewicz
Paul J. Fishman [ARGUED]
Amanda J. Raines
Orion de Nevers
Arnold & Porter Kaye Scholer
Counsel for Appellee
Mark E. Coyne [ARGUED]
Office of United States Attorney
26
AMBRO, Circuit Judge, concurring in part and dissenting in
part.
Members of Congress are not above the law. That is
why I join my colleagues in holding that the separation-of-
powers principles the Supreme Court articulated in Trump v.
United States do not extend so far as to protect presumptively
even those acts “within the outer perimeter” of
Congresswoman McIver’s official responsibilities. 603 U.S.
593, 614 (2024).
Members of the Executive Branch are bound by law too.
And the Constitution does not permit the Executive to wield its
considerable discretion over criminal prosecutions in
retaliation against disfavored legislators. Congresswoman
McIver invokes two protections following from that principle.
The first is immunity under the Speech or Debate
Clause. This privilege exists not to shield Members of
Congress from criminal liability. Rather, it prevents “a
criminal action . . . instituted by the Executive Branch” from
“imperil[ling]” legislative independence by questioning a
Member’s motivation when exercising her core legislative
duties. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503
(1975). The duty Congresswoman McIver sought to perform
when she visited Delaney Hall on May 9, 2025 strikes at the
heart of the Clause’s purpose: to oversee the Executive Branch.
I agree with my colleagues that Count One—“slamm[ing] her
forearm” into Victim-1 (“V-1”) and “forcibly grabbing him,”
App. 75, in an effort to stop the arrest of Mayor Baraka—does
not implicate that protected activity. And I agree that a remand
is necessary to sort out whether Count Three does so. But I
part with the majority’s treatment of Count Two. I would
vacate the District Court’s denial of Congresswoman McIver’s
motion to dismiss that Count and remand for factual findings
1
critical to determining whether legislative immunity attaches
to the act the Count targets.
The second protection is freedom from fear that the
Executive will use criminal prosecution to punish legislators
for their oversight and political opposition. My colleagues
believe vindication of this right is beyond our jurisdiction. I
disagree. And where, as here, a legislator has presented
evidence that her prosecution was brought as an act of political
retaliation, I would allow her discovery into the truth of the
matter—not only for her own sake but to safeguard the
independence of our legislative bodies.
I. We should vacate the District Court’s denial of
Congresswoman McIver’s motion to dismiss Count
Two on legislative privilege grounds and remand
for additional factual findings.
Count Two charges that Congresswoman McIver
“pushed past” Victim-2 (“V-2”) and “us[ed] each of her
forearms to forcibly strike [him] as she returned inside of the
secured area of Delaney Hall.” App. 77. After lifting that
characterization of her conduct from the allegations in the
indictment, my colleagues conclude that the acts defined in
those terms are unambiguously non-legislative. They reach
that result without grappling with the extrinsic evidence that
Congresswoman McIver’s contact with V-2 was incidental to
re-entering Delaney Hall to inspect the facility, an act of
legislative fact-finding covered by the Speech or Debate
Clause and authorized by federal law. Their result is
incompatible with our Court’s ruling in United States v.
Menendez, 831 F.3d 155 (3d Cir. 2016). When a Member
claims legislative privilege by proffering an “ambiguously
legislative” act, as the Congresswoman does here, courts must
2
consider the “content, motive, and purpose” of the act to
determine whether immunity attaches. Id. at 166.
Because I believe the context surrounding the contact
between Congresswoman McIver and V-2 demands closer
scrutiny than the majority’s analysis affords, I part from its
treatment of Count Two. I believe the District Court
determined correctly that her acts were ambiguously legislative
under Menendez. It was thus correct to zoom in and consider
the content, purpose, and motive of her activities. But the
Court conducted that analysis by focusing on V-2’s motives
rather than the Congresswoman’s intent in making contact with
him. As a result, I would vacate its denial of her motion to
dismiss Count Two and remand for additional fact-finding to
determine whether she shoved him gratuitously, intending to
inflict harm, or merely made incidental contact with V-2 in an
effort to re-enter the facility that federal law authorizes her to
inspect.
I.A. The Speech or Debate Clause covers activity
essential to legislating.
The Speech or Debate Clause states that “Senators and
Representatives shall . . . be privileged from Arrest during
their Attendance at the Session of their respective Houses, and
in going to and returning from the same; and for any Speech or
Debate in either House, they shall not be questioned in any
other Place.” U.S. Const. art. I, § 6, cl. 1. The text of the
Clause is “deceptively simple.” Brown & Williamson Tobacco
Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995). Far from
applying only to words spoken in a debate, it confers immunity
to Members of Congress for any conduct “within the ‘sphere
of legitimate legislative activity.’” Gravel v. United States,
408 U.S. 606, 624 (1972) (quoting Tenney v. Brandhove, 341
U.S. 367, 376 (1951)).
3
Some acts entitled to immunity will be easy to identify
because they are “so clearly legislative in nature that no further
examination has to be made to determine their appropriate
status.” Government of Virgin Islands v. Lee, 775 F.2d 514,
522 (3d Cir. 1985). We call these “manifestly legislative acts.”
Id. Examples include “introducing and voting on proposed
resolutions and legislation, introducing evidence and
interrogating witnesses during committee hearings,
subpoenaing records for committee hearings, [and] inserting
material into the Congressional Record.” Menendez, 831 F.3d
at 166. Courts can identify a manifestly legislative act simply
by “look[ing] to the form of the act.” Id. If its form has the
requisite trappings of Congressional procedure, then the
immunity analysis effectively ends there. I agree with my
colleagues that none of Congresswoman McIver’s charged
conduct fits this category. So the immunity analysis must go
further.
“On the other side of the spectrum,” there is another
category of easy cases: acts “so clearly non-legislative that no
inquiry into their content or underlying motivation or purpose
is needed to classify them.” Id. Acts with little to no link to
the legislative process fit here. “Taking a bribe,” for example,
is “obviously” non-legislative because “[i]t is not, by any
conceivable interpretation, an act performed as a part of or
even incidental to the role of a legislator.” United States v.
Brewster, 408 U.S. 501, 526 (1972). And even some acts
“peripherally related” to a Member’s office will fall into this
category. Id. at 520. Many acts legislators perform routinely,
such as constituent services, are not entitled to legislative
immunity because, though they are “entirely legitimate
activities, they are political in nature rather than legislative.”
Id. at 512.
4
The hard cases are the ones that do not fall into either
category—those acts that (A) lack the trappings of
Congressional procedure, but (B) are closely connected to the
functioning of the legislative process. We call these
“ambiguously legislative” acts. Menendez, 831 F.3d at 166.
The category derives from the Supreme Court’s teaching that
legislative immunity “reach[es]” all activities “integral” to the
“deliberative and communicative processes by which
Members participate in committee and House proceedings with
respect to the consideration and passage or rejection of
proposed legislation or with respect to other matters which the
Constitution places within the jurisdiction of either House.”
Gravel, 408 U.S. at 625. In a shorter formulation of the same
rule, Gravel explained that courts should generally “extend[]
the privilege to matters beyond pure speech or debate in either
House[] . . . ‘when necessary to prevent indirect impairment of
such deliberations.’” Id. (quoting United States v. Doe, 455
F.2d 753, 760 (1st Cir. 1972)). These formulations drive at the
same point: that immunity attaches to activities “essential” to
the legislative process, where denial of the privilege would
“threaten the integrity or independence” of the legislature. See
id.
I.B. Count Two charges ambiguously legislative
activity.
Applying those standards, I believe that Count Two
charges ambiguously legislative activity. We held in Lee that
“fact-finding, information gathering, and investigative
activities are essential prerequisites to the drafting of bills and
the enlightened debate over proposed legislation.” 775 F.2d at
521. Accordingly, the Speech or Debate Clause does not
tolerate an attempt by the Executive Branch to try or punish a
Member for an act “involv[ing] legislative fact-finding.” Id. at
5
522. The extrinsic evidence in this case raises alarm bells that
is happening here.
Congresswoman McIver introduced evidence
establishing that she went to Delaney Hall on May 9 to
investigate reports of abusive conditions there. Congress has
oversight responsibility over the Department of Homeland
Security (“DHS”), the agency that operates the facility. In
order to fulfill that role and consider meaningfully legislation
aimed at curbing abusive conditions, Members of Congress
need the means to discover whether and to what extent those
conditions exist. See Eastland, 421 U.S. at 504 (“[T]he power
to investigate is inherent in the power to make laws because a
legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the
legislation is intended to affect or change.” (cleaned up)).
The Supreme Court in Eastland explained that the
“[i]ssuance of subpoenas . . . has long been held to be a
legitimate use by Congress of its power to investigate,” and
accordingly held that legislative immunity covers that act. Id.
at 504—05. Subpoena power is not the only investigative tool
covered by the privilege, however. Legislative immunity
extends to acts taken in the course of “field investigations”
because “[t]he acquisition of knowledge through informal
sources is a necessary concomitant of legislative conduct and
thus should be within the ambit of the privilege so that
[legislators] are able to discharge their constitutional duties
properly.” McSurely v. McClellan, 553 F.2d 1277, 1286—87
(D.C. Cir. 1976); see also Lee, 775 F.2d at 522 (holding that a
legislator’s “conversations” and “meetings” with officials
qualify for immunity whenever they “involve[] legislative fact-
finding”).
6
Congress supplied its Members with a hands-on
investigative tool in the context of overseeing DHS’s operation
of immigration detention facilities: authorization to conduct
unannounced, in-person inspections. See Further Consolidated
Appropriations Act, Pub. L. No. 118—47, div. C, tit. V §
527(a), 138 Stat. 360, 619 (2024) (“Section 527”). The
provision prohibits DHS from using any funds “to prevent” a
Member of Congress “from entering, for the purpose of
conducting oversight, any facility operated by or for [DHS]
used to detain or otherwise house aliens.” Id. And it also
prohibits using funds “to make any temporary modification at
any such facility that in any way alters what is observed by a
visiting Member of Congress . . . compared to what would be
observed in the absence of such modification.” Id.
From the moment Congresswoman McIver arrived at
Delaney Hall, she had reason to fear that DHS was violating
Section 527 and thus depriving her of the ability to conduct
fact-finding in the manner Congress contemplated. Instead of
letting her in immediately to inspect the conditions at the
facility, the guards directed her to an administrative office. She
had already been waiting there for over an hour before Mayor
Baraka arrived at the facility gate, a scuffle ensued, and she
went outside to aid the Mayor. In that context, video evidence
shows Congresswoman McIver making plausibly incidental
contact with V-2 as she tried to return to the secure area. See
Def. Ex. CC, 00:50. The indictment on its face concedes as
much, alleging that she “pushed past V-2 . . . as she returned
inside of the secured area of Delaney Hall.” App. 77 (emphasis
added). And video evidence shows that V-2 was standing at
the threshold of the facility, physically obstructing
Congresswoman McIver’s ability to return to the secure area
in the moment she “pushed past” him. Id. The act
Congresswoman McIver proffers—circumventing an
7
Executive Branch official who stands at the threshold of a
facility that federal law authorizes Members to enter for fact-
finding purposes—is an ambiguously legislative act because it
is integral to exercising her “power to investigate,” and by
extension, her “power to make laws.” Eastland, 421 U.S. at
504.
The majority concludes that the act of entering a DHS
facility under Section 527 is unambiguously non-legislative by
comparing it to the act of transit. True, the act of “[t]ravel to
and from the Capitol,” “although a necessary precondition” to
performing certain legislative acts, “is not an integral part” of
the legislative process. United States v. McDade, 28 F.3d 283,
299 (3d Cir. 1994). Accordingly, if Congresswoman McIver
struck a pedestrian with her car on the way to Delaney Hall, I
have no doubt that act would be unambiguously non-
legislative.
But the majority’s comparison misses a step. When an
Executive Branch official prevents a Member from entering a
DHS facility, she is denied effective access to an oversight
inspection, the investigative tool federal law supplies Members
in this context. My colleagues reason that the act of “entry into
the secured area” is not itself the “act of inspection,” so
immunity does not attach to it even though access to a facility
is an obvious precondition to inspecting it. Maj. Op. 21. Under
their reasoning, House Members should not enjoy immunity
for issuing subpoenas either, because the act of mailing a letter
to the target is not itself the act of gathering the response, which
is what conveys the information of legislative importance.
That approach guts privilege claims over acts “involv[ing]
legislative fact-finding.” Lee, 775 F.2d at 522.
The majority also reasons that legislative immunity
cannot protect Congresswoman McIver because Count Two
8
only charges her for “pushing past Victim-2 and using her
forearms to forcibly strike him,” conduct it says is “distinct
from” the act of entering Delaney Hall for the purpose of
conducting an oversight inspection. Maj. Op. 20. That
approach defies common sense because Congresswoman
McIver’s access to the facility and her contact with V-2 were
inextricably connected. On Congresswoman McIver’s telling,
the contact was calculated to get around V-2 for her to access
the facility, and her access to the facility depended on
circumventing him somehow. That proffer, along with the
extrinsic evidence supporting it, demand that we analyze the
acts as one.
And there is an additional reason not to separate the two
acts. A prosecution is impermissible if trying the Member for
the putative crime would require so much as a “mention” of a
legislative act as part of the Government’s proof, not merely
where the words used in the indictment target the legislative
act in so many words. United States v. Helstoski, 442 U.S. 477,
490 (1979). Congresswoman McIver contends that her contact
with V-2 was incidental to her attempt to reenter Delaney
Hall—contact reasonably calculated to allow her to inspect the
facility before temporary modifications could be made—and
certainly was not a criminal instance of “forcibly assault[ing],
resist[ing], oppos[ing], imped[ing], intimidat[ing], or
interfer[ing] with” him in the manner proscribed by 18 U.S.C.
§ 111(a). The District Court should scrutinize closely the
veracity of that proffer at Menendez’s second step when it
considers the purpose and motive behind her contact with V-2.
But by separating the contact from the act of re-entering the
facility to perform her legislative oversight function, my
colleagues risk permitting a prosecution to proceed that will
target her for re-entering, sapping the Speech or Debate Clause
of the “prophylactic” effect it is supposed to have when we are
9
“scrutinizing [a] criminal prosecution.” United States v.
Johnson, 383 U.S. 169, 182 (1966).
As a result, the majority glosses over the unique
separation-of-powers concerns this case presents. Against the
backdrop of Congresswoman McIver’s claim, this case pits a
generally applicable criminal statute designed to protect certain
Executive Branch officials from interference with their duties,
18 U.S.C. § 111(a), against Section 527, a statute giving
Members of Congress a right of access to the very facility
Congresswoman McIver was attempting to enter and
prohibiting those officials from preventing her from doing just
that. The task before us now is not to work out how those two
statutes interact. We must, instead, contend with the
possibility that permitting the Government to prosecute
Congresswoman McIver for making incidental contact with an
Executive Branch official in these circumstances fails to
“reinforce[] the separation of powers” principles the Speech or
Debate Clause serves. Johnson, 383 U.S. at 178. Because
these concerns loom large in this case, and for the reasons I
explained above, I would hold that Count Two charges
ambiguously legislative activity. The majority’s contrary
result fails to construe the Clause “broadly” to effect its
“prophylactic purposes,” chief among them “to prevent
intimidation by the executive and accountability before a
possibly hostile judiciary.” Id. at 180–82.
I.C. The District Court incorrectly analyzed
Congresswoman McIver’s ambiguously
legislative activity.
The District Court concluded, as I do, that the charged
conduct was ambiguously legislative. Accordingly, it should
have proceeded to consider the “purpose[] and motive” of her
acts to determine whether immunity attaches to them.
10
Menendez, 831 F.3d at 166. As a matter of form, it purported
to do so. As a matter of substance, however, the factual
findings the Court made—and those it failed to make—do not
assure me that it applied that test correctly.
Start with its November 2025 opinion denying
Congresswoman McIver’s motion to dismiss Counts One and
Three. Even though it did not reach a conclusion as to Count
Two, the District Court stated in a footnote that “it is axiomatic
that [Congresswoman McIver’s] statutory right to enter and
inspect the facility could not be infringed, even if mistakenly,
by V-2.” App. 27. Despite making that statement, it proceeded
to consider V-2’s intent when resolving the Count Two
immunity issue in its January 2026 opinion. Specifically, it
found that “V-2 was not facing [Congresswoman McIver] or
purposely impeding her when the physical contact occurred.”
App. 54 (emphasis added).
The import of that finding is unclear. Did the District
Court find that V-2 was not physically positioned between
Congresswoman McIver and the entrance to the facility? If so,
then video evidence belies its conclusion. Did the Court mean
merely to find that V-2 did not intend to interfere with
Congresswoman McIver’s ability to access Delaney Hall? If
so, then its finding is beside the point and contradicts the
Court’s November 2025 statement that V-2’s intent is
irrelevant. In any event, the statement fails to consider
Congresswoman McIver’s intent—the touchstone of the
analysis of her ambiguously legislative activity.1 When she
1
The Supreme Court’s statement in Bogan v. Scott-
Harris, 523 U.S. 44, 54 (1998), that “[w]hether an act is
legislative turns on the nature of the act, rather than on the
11
motive or intent of the official performing it,” does not control
in this context for two reasons.
First, that case dealt with a common law legislative
immunity claim asserted by “local officials performing
legislative functions,” id. at 46, whereas Congresswoman
McIver invokes immunity under the Speech or Debate Clause.
While the two forms of immunity are “similar in origin and
rationale,” the Supreme Court teaches that the Speech or
Debate Clause confers “a broader privilege” to federal
legislators in the context of criminal prosecutions. Sup. Ct. of
Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 732–33
(1980). That makes sense. The Clause’s “predominate thrust”
is to protect “disfavored legislators” from the “instigation of
criminal charges . . . by the executive.” Johnson, 383 U.S. at
182. Because some legislative acts that may put a Member at
risk of retaliation are not identifiable merely by the trappings
of Congressional procedure, the Speech or Debate Clause
covers a federal legislator’s ambiguously legislative activity in
addition to her manifestly legislative acts. But if we close our
eyes to the extrinsic evidence revealing a legislator’s intent
when she engages in ambiguously legislative activity, then we
lose the means of distinguishing factually between acts integral
to the legislative process and those “misrepresented as
legislative.” Lee, 775 F.2d at 524. That is why, nearly two
decades after Bogan, our Court rejected Senator Robert
Menendez’s argument that immunity attaches to ambiguously
legislative activity merely because the act “viewed
objectively . . . appears legislative.” Menendez, 831 F.3d at
167. Accordingly, “we consider a legislator’s purpose and
motive to the extent they bear on whether ‘certain legislative
acts were in fact taken.’” Id. (quoting Lee, 775 F.2d at 524);
12
pushed past V-2, was her “predominant purpose,” Menendez,
831 F.3d at 173, to circumvent him in order to enter the facility
and conduct the oversight inspection or to inflict harm on him?
That is the question the District Court needed to answer in this
context. It did not, so I would remand with instructions to do
so.
II. When faced with vindictive or selective prosecution
claims alleging political retaliation against sitting
Members of Congress, we should exercise
jurisdiction under the collateral order doctrine.
In addition to the Speech or Debate Clause,
Congresswoman McIver also invokes a second protection: the
Constitution’s due-process guarantee that defendants will not
be prosecuted vindictively (that is, as punishment for
exercising their rights) or selectively (that is, as a result of
accord United States v. James, 888 F.3d 42, 48—49 (3d Cir.
2018) (examining a legislator’s motives to determine whether
his ambiguously legislative acts were entitled to immunity
under the Menendez framework).
Second, the local officials claiming immunity in Bogan
proffered they engaged in a manifestly legislative act:
“introducing, voting for, and signing an ordinance.” 523 U.S.
at 46. In that context, the Supreme Court explained that “[w]e
need not determine whether the formally legislative character
of petitioners’ actions is alone sufficient to entitle petitioners
to legislative immunity.” Id. at 55. But the Court had no
occasion to consider whether it would be appropriate to
consider motive in a context where a legislator claims
immunity for engaging in an ambiguously legislative act, such
as the act at issue here.
13
illegitimate discrimination). The District Court denied her
motion to dismiss the indictment on those grounds. And, on
the basis of flawed reasoning, it denied her even the
opportunity to conduct discovery. Because this ruling was not
a “final decision” that concluded the proceedings, we
ordinarily would not have jurisdiction over it. See 28 U.S.C. §
1291. The majority takes that way out. But in certain
extraordinary cases, we make exceptions to that rule under the
“collateral order doctrine.” And this is an extraordinary case.
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
14
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 ever-
multiplying 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
15
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. They include the following.
II.A. On vindictive prosecution, we should remand
for discovery regarding the decision to
prosecute.
“[W]hile an individual certainly may be penalized for
violating the law, [s]he just as certainly may not be punished
for exercising a protected statutory or constitutional right.”
United States v. Goodwin, 457 U.S. 368, 372 (1982). To prove
vindictiveness, “a defendant may use evidence of a
prosecutor’s retaliatory motive.” United States v. Paramo, 998
F.2d 1212, 1220 (3d Cir. 1993). Based on evidence of animus
against her, Congresswoman McIver claims a story of
vengefulness behind her prosecution. I believe she has the
right to find out whether it is true.
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
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.
16
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
17
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. Instead, the key question is whether “ill will,
whoever its bearer, actually motivated [the] prosecution.”
United States v. Monsoor, 77 F.3d 1031, 1035 (7th Cir. 1996).
For example, the Sixth Circuit has granted discovery into
whether the Equal Employment Opportunity Commission
caused a criminal tax investigation of an employee who had
sued the agency. United States v. Adams, 870 F.2d 1140,
1145–46 (6th Cir. 1989).
This case, like Adams, turns on whether the animus of
another agency may be imputed to the Department of Justice
(“DOJ”). If not, most of Congresswoman McIver’s evidence
is irrelevant. If so, however, she has a colorable claim that this
prosecution arose “solely to penalize [her] for exercising [her
statutory] right” to oversight inspections of DHS facilities. See
Paramo, 998 F.2d at 1221. As in Adams, the Government has
failed to show that comparable conduct has “heretofore been
subjected to prosecution.” 870 F.2d at 1145. Congresswoman
McIver has provided evidence of resistance to her legislative
oversight, repeated falsehoods attempting to portray that
oversight as criminal wrongdoing, and potentially unlawful
policy changes aimed at stymying oversight. And an amicus
brief filed by former federal prosecutors describes this
prosecution as a “disturbing departure” from longstanding DOJ
norms. No. 25-2573, Dkt. 32 at 2. “It may well be that no fire
will be discovered under all the smoke, but there is enough
smoke here . . . to warrant the unusual step of letting the
defendant[] find out how this unusual prosecution came
18
about.” Adams, 870 F.2d at 1146. Therefore, on her vindictive
prosecution claim, I would permit Congresswoman McIver
discovery aimed at ascertaining DHS’s role in the decision to
prosecute her.
II.B. On selective prosecution, we should remand
for discovery regarding discriminatory
purpose.
“[O]rdinary equal protection standards” apply to claims
of selective prosecution—namely, the defendant must
demonstrate both that the prosecution decision “had a
discriminatory effect” and that it “was motivated by a
discriminatory purpose.” United States v. Armstrong, 517 U.S.
456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598,
608 (1985)). To establish a discriminatory effect, a defendant
may show that “similarly situated individuals” were treated
more favorably. Id. Several circuits have adopted the Fourth
Circuit’s definition of “similarly situated” individuals: those
whose “circumstances present no distinguishable legitimate
prosecutorial factors that might justify making different
prosecutorial decisions with respect to them.” United States v.
Olvis, 97 F.3d 739, 744 (4th Cir. 1996); see, e.g., United States
v. Lewis, 517 F.3d 20, 27 (1st Cir. 2008); United States v.
DeChristopher, 695 F.3d 1082, 1097 (10th Cir. 2012); Branch
Ministries v. Rossotti, 211 F.3d 137, 145 (D.C. Cir. 2000).
Congresswoman McIver identifies as similarly situated
comparators the defendants who stormed the United States
Capitol on January 6, 2021, and were, like her, charged under
§ 111(a)—but whose pending charges were dismissed. When
assessed against legitimate factors, they were far more culpable
than she is: many of them were armed, and she was not; they
were unlawfully present, and she was not; many of them had
19
criminal records, and she did not; many of them caused
injuries, and she did not.
But the District Court concluded these differences
disqualified those defendants from comparison. It analogized
to United States v. Judd, 579 F. Supp. 3d 1 (D.D.C. 2021),
which rejected a January 6 defendant’s argument that he was
similarly situated to rioters in Oregon who had their charges
dismissed. Judd pointed out that the defendant endangered
many people, whereas the Oregon rioters attacked a largely
vacant building. Id. at 7–8. Citing this analysis, the District
Court reasoned that “[i]f the January 6 defendants can be
distinguished from another group of civilian protestors,
Defendant, a Congresswoman with statutory authority to be
present at Delaney Hall, is certainly not similarly situated.”
United States v. McIver, 809 F. Supp. 221, 251 (D.N.J. 2025).
That reasoning fails. In Judd, the defendant was more
criminally culpable than the comparators, so there was a
legitimate reason to dismiss their charges but not his. But
Congresswoman McIver is less criminally culpable than her
comparators. That means there was no legitimate reason to
dismiss their charges but not hers. The differences between
Congresswoman McIver and the comparators make it more
likely, not less, that she was prosecuted selectively.
The District Court also determined that the January 6
defendants were not appropriate comparators because they did
not escape prosecution. It noted that they “were in fact
prosecuted by DOJ before receiving pardons for their crimes”
and that “DOJ had no discretion when dismissing [their]
criminal cases—the Presidential pardon required their
dismissal.” Id. at 249–50.
20
But the President’s proclamation clearly distinguished
between those already convicted (who received pardons) and
those with pending indictments (which were dismissed).
Proclamation No. 10887, 90 Fed. Reg. 8331, 8331 (Jan. 20,
2025). The proclamation contains four operative paragraphs.
In the first, the President “commute[d] the sentences” of
certain defendants. Id. In the second, he “grant[ed] a full,
complete[,] and unconditional pardon to all other individuals
convicted of offenses related to [January 6].” Id. The third
instructs the Attorney General to secure for those “described in
[the paragraph] above” certificates of pardon and release from
prison. Id. Only then does the last paragraph “further direct
the Attorney General to pursue dismissal with prejudice to the
government of all pending indictments against individuals for
their conduct related to [January 6].” Id.
The text is unambiguous. The directive regarding
dismissals comes two paragraphs after the grant of pardons. It
is a “further” directive, not a component of the pardoning
directive. Id. The intervening third paragraph expressly
contemplates issuing certificates of pardon only to those
“described in section (b) above”—i.e., those “convicted of
offenses.” Id. Aside from the pardon and dismissal directives’
appearance in the same document, there is no textual support
for the District Court’s conclusion that those with pending
charges were also pardoned.3
3
The District Court cited two circumstantial factors in
support of its position. First, the Government reported that the
Office of the Pardon Attorney issued some certificates of
pardon to defendants with pending cases, considering them
“included in the universe of defendants who received pardons.”
21
Because it decided she had failed to show
discriminatory effect, the District Court did not consider
Congresswoman McIver’s evidence of discriminatory purpose.
Without recounting here each item of evidence in her briefing,
I believe she presented enough to obtain discovery on whether
this prosecution “was intended to prevent [her] exercise of a
fundamental right”—that is, whether it punishes her for doing
her job as a Member of Congress with specific oversight
McIver, 809 F. Supp. 3d at 250 (quoting Gov’t’s Opp’n to Mot.
to Dismiss, 16). Second, at least one court has referred to a
January 6 defendant’s “pardon” when dismissing his case. See
United States v. Banuelos, 763 F. Supp. 3d 1, at *1–2 (D.D.C.
2025).
But neither of these bodies has the authority to alter the
plain text of the Presidential proclamation. Even setting that
aside, those circumstances do not squarely support the District
Court’s conclusion. First, “a pardon by its mere issue has [no]
automatic effect.” Burdick v. United States, 236 U.S. 79, 90–
91 (1915). Rather, “[a] pardon is a deed, to the validity of
which delivery is essential, and delivery is not complete
without acceptance.” Id. (internal quotation marks omitted).
At minimum, therefore, the comparators who did not receive
certificates of pardon are not pardoned. Second, even if courts’
characterizations were relevant, some have dismissed cases
without prejudice. See, e.g., United States v. Amos, 763 F.
Supp. 3d 2, 5–6 (D.D.C. 2025); United States v.
GossJankowski, 348 F.R.D. 140, 145–46 (D.D.C. 2025);
United States v. Jovanovic, No. 25-cr-15, 2025 WL 266551, at
*3 (D.D.C. Jan. 22, 2205). That contemplates the possibility
of future prosecution for the same acts, which would be
impossible if the defendants had been pardoned.
22
responsibilities. United States v. Schoolcraft, 879 F.2d 64, 68
(3d Cir. 1989) (per curiam).
* * * * *
For the reasons above, I respectfully concur in part and
dissent in part.
23