The Red Line: Democratic Officials Claim A Dangerous License For Illegality

Authored by Jonathan Turley,

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.”

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 charged “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, member 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.

As Democratic leaders like Walz engage in rage rhetoric and paint Republicans (and federal law enforcement) as Nazis, political violence 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 an 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.”