Court Lets Assault Case Against Rep. McIver Proceed

McIver said the court "got it wrong" and that she is "exploring every possible option."

"To protect the people, their elected representatives must be authorized to conduct oversight of the executive branch without fear of retaliation," she said in a statement. "I will not fold to this administration. The administration will not stop me from doing my job or standing for what is right. This is not over."

Writing for the majority, Chung said the court had "considered the 'nature' of the charged conduct and concluded it is unambiguously non-legislative" — the case targets a specific physical interaction, not the oversight visit itself.

Judge Thomas Ambro partially dissented. He agreed that "members of Congress are not above the law" and that "grabbing" an agent to stop the mayor's arrest is not protected legislative work. But he said the second count needs "additional fact-finding to determine whether she shoved him gratuitously, intending to inflict harm, or merely made incidental contact ... in an effort to re-enter the facility that federal law authorizes her to inspect."

Ambro also would have let McIver seek discovery into her claim of "selective and vindictive prosecution" by the Trump administration — a question the majority said it lacked jurisdiction to reach. He noted that Justice Department charges against Trump supporters who assaulted police on Jan. 6, 2021, were dismissed at Trump's request, which he said could support her claim of being singled out. "Potentially retaliatory prosecutions of sitting Members of Congress are exceedingly rare," Ambro wrote. "But when they do occur, the constitutional foundation of our government is at risk."

Conservative outlets framed the decision as a win for the administration: Fox News called it a court victory for President Trump's Justice Department, noting that Chung was appointed by President Biden. The Washington Times reported the court "green-lights most" of the DOJ's case.