President Donald Trump began his second term by ordering blanket pardons and dismissals for his supporters who were charged for their actions on Jan. 6. But in doing so, did the president effectively end the subsequent prosecution of a Democrat before it even started?
The question arises in a court filing from U.S. Rep. LaMonica McIver, D-N.J. She was charged in the spring with allegedly assaulting federal officers at an immigration facility in Newark, New Jersey, while she was conducting oversight with other Democratic politicians amid the Trump administration’s immigration crackdown.
McIver invoked the Jan. 6 dismissals in her motion to dismiss the case for being selectively enforced and prosecuted, as well as vindictive. “The Department of Justice’s dismissal of prosecutions arising from the January 6 attack on the Capitol — including those of more than 160 defendants charged with violating the same statute upon which the indictment relies here — is robust evidence of unconstitutional differential treatment,” her lawyers wrote.
They observed that the congresswoman’s alleged conduct was “manifestly less egregious than storming the Capitol, throwing explosives, beating officers with bats and riot shields, and spraying them with pepper spray.”
“There is a simple difference between this prosecution of Congresswoman McIver and the 160 cases involving assault against federal officers on January 6 that the Justice Department has dismissed: it is all about politics and partisanship,” her lawyers wrote, calling the differential treatment “precisely what the Constitution forbids.”
The filing is a sobering reminder of the violence of Jan. 6 and what it says about an administration that made it a Day One priority to forgive scores of convictions (by way of clemency) and pending charges (by way of dismissals).
But as a legal matter, can the congresswoman’s point about those priorities actually get her case dismissed?
It’s a high bar to win such claims. We were reminded of this fact in Trump’s own federal Jan. 6 case, which the DOJ moved to dismiss after he won the 2024 election, due to the department’s policy against prosecuting sitting presidents. Before he won that dismissal at the ballot box, Trump had unsuccessfully pressed aselective prosecution claim. U.S. District Judge Tanya Chutkan rejected his argument that he was singled out for a prosecution that “similarly situated” people had avoided.
Seeking to clear that high bar in her case, McIver, who pleaded not guilty, maintains that the DOJ “cannot pursue charges against her because she is a Democrat who conducts oversight of Executive Branch immigration policy, while dismissing charges brought under the same statute against those whose views they share and who engaged in conduct far more egregious.”
The fate of McIver’s case doesn’t hinge on the success of this single motion. She filed it alongside others, including one that seeks to dismiss her case based on legislative immunity, in which her lawyers wrote that she’s charged in connection with “a congressionally authorized oversight inspection.”
Legislative immunity is distinct from the presidential immunity that Trump won from the Supreme Court in his Jan. 6 case. But McIver seeks to harness that new precedent in her favor, too. Citing the high court’s decision last year in Trump v. United States and its separation of powers rationale, her lawyers wrote in the immunity motion that the court’s reasoning in Trump’s case “applies with at least as much force in the context of legislative immunity,” given the latter doctrine’s concern with ensuring legislative independence. So, the Jan. 6 cases that Trump dismissed and the precedent set by his own Jan. 6 case both play an active role in McIver’s case. In its forthcoming responses to her motions, it will fall to Trump’s DOJ to distinguish those dismissals and that precedent to keep the case against McIver alive. Notably, the same assault charge brought against the congresswoman and that was dismissed against Jan. 6 defendants was also brought against Sean Charles Dunn, who threw a sandwich at an officer in Washington, D.C., earlier this month. But the administration’s stated effort to stand up for law enforcement by making an example of Dunn likewise evokes comparisons to Jan. 6 and the administration’s abandonment of that principle with those dismissals (and pardons). Though the outcome of his case, like McIver’s, is uncertain, Jan. 6 will continue to haunt the administration and Trump’s legacy, regardless of whether it provides a winning legal defense for its detractors. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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