Here, I find myself rooting against both sides.
Here, I find myself rooting against both sides.
B rittany Bernstein reported on Monday about the search of the Washington, D.C., residence of Representative Ilhan Omar (D., Minn.). When analyzing legal merits, I try not to let any political rooting interest I may have cloud my judgment. Here, my knee-jerk reaction is to root against both sides.
I find Omar a detestable figure and have long suspected she may have been complicit in immigration fraud. On the other hand, the Trump Justice Department lawfare is revolting: Regardless of whether she’s guilty, Omar is under investigation solely because she is a Trump political enemy. That’s obvious — and not just because of the Trump DOJ’s extensive track record of hounding the president’s nemeses. The DOJ is pursuing an immigration fraud case, and a criminal prosecution arising out of any fraud in Omar’s admission to the United States and subsequent naturalization as a citizen would be long time-barred under the applicable statutes of limitations. Ordinarily, the DOJ would not bother investigating crimes too stale to prosecute, but because Omar is a Trump foe, that protocol has gone by the boards.
I say this is a criminal investigation because, as Brittany noted, the search of Omar’s residence was pursuant to warrant. Search warrants are used to investigate crime, not civil or regulatory wrongs (although they may produce evidence that is ultimately used in such proceedings). A search warrant must be authorized by a judge in the federal district where the residence is located. The Wall Street Journal confirms that the representative’s residence is in the District of Columbia (as opposed to the surrounding suburbs of Virginia and Maryland in that metro area).
Normally, a federal search warrant is authorized by a magistrate judge — a judicial officer who works for the court but is not a Senate-confirmed Article III judge. Here, however, I suspect a judge of the district court issued the warrant. That’s because, according to the New York Times, the warrant was first proposed over a week ago, and it generated robust back-and-forth between the court and the Justice Department. I wouldn’t be surprised if the court was worried about lawfare; I’m confident, though, that separation-of-powers concerns factored heavily in the ex parte discussions.
Members of Congress have constitutional speech and debate clause immunity for their legislative activities. That does not immunize them from prosecution for criminal conduct unrelated to congressional functions, but the executive branch is not supposed to pry into legislative acts and communications (just as the White House customarily claims executive privilege when Congress tries to compel disclosure of communications involving the president and top administration officials). Consequently, a judge (or a magistrate judge) would have wanted to be satisfied that the DOJ had in place a filter procedure that is standard when a search is likely to produce privileged materials: A team of prosecutors and investigators not involved in Omar’s case would be tasked to go through all seized evidence and sift out privileged congressional materials, which would be returned to Omar and not disclosed to the team of prosecutors and agents assigned to the criminal investigation. (The court would also want assurance that, following the search, Omar’s lawyers would have an opportunity to inspect the seizures and lodge any privilege objections with the filter team and the court before the investigative team got access to them.)
The FBI usually takes the lead in investigations of public officials. In this instance, however, because the focus of the probe is possible immigration crimes, it is being conducted by the Department of Homeland Security’s investigative division. The DHS has principal jurisdiction over immigration enforcement.
It is not clear to me what Justice Department component is in charge. More than likely, it is the district U.S. attorney’s office in Minneapolis (where Omar and her family principally reside and where she and her father went through the naturalization process). It could also be the U.S. attorney in Washington, D.C. (where the warrant was obtained), or perhaps the case is being worked out of Main Justice or by some similar special team assigned by the attorney general. It would not surprise me if AG Todd Blanche appoints a special counsel; there is no real need for one, but it would enable him to take advantage of the SC regulation that requires the writing of an investigative report (see § 600.8(c) of the special counsel regs). Because I doubt the Trump DOJ can make a timely criminal case on Omar, I suspect it will want to issue a robust public report laying out her alleged misconduct, chapter and verse. (A caveat: If the DOJ published a special counsel report on Omar, that would intensify pressure on the administration to publish Biden special counsel Jack Smith’s report on President Trump’s alleged misconduct in the Mar-a-Lago documents case; with DOJ’s complicity and Judge Aileen Cannon’s indulgence, Trump has gone to great lengths to keep that report under wraps.)
Search warrant applications are typically sealed by the court and do not become public unless and until there is an indictment (after which they become part of the discovery in the case and usually the subject of public hearings). Hence, we don’t know exactly what the probable-cause basis for the search of Omar’s home was. The Times, relying on an informed (but unidentified) source, says the warrant “lists a series of potential immigration crimes under investigation, including false statements and fraud in immigration paperwork, as well as a general conspiracy charge.”
To my mind, the most significant fact in the reporting is that a judge issued a search warrant. Under federal law, the fact that a person is credibly suspected of committing crimes is not sufficient to justify the issuance of a search warrant for the suspect’s premises. Beyond probable cause that the suspect has committed a federal offense, the government must satisfy the judge that there is probable cause to believe evidence of that crime is present in the place the government wants to search.
Government officials, including DHS’s Tom Homan, have indicated that the investigation of Omar involves the paperwork pertinent to her naturalization as an American citizen. This may implicate representations made by Omar’s father, the late Mohammed Omar Nur. Ilhan Omar came to the United States in 1995, when she was twelve, with her father; they appear to have been refugees from Kenya, to which they had fled from their native Somalia.
Omar has said her establishment of legal status in the United States derived from her father’s status; consequently, if the government is claiming that Omar’s status was fraudulently obtained, it is likely claiming that her father’s paperwork was fraudulent. The government takes the position that, if a person’s immigration status derives from a parent who committed fraud, that person’s status could be illegitimate even if she was a minor and unaware of the fraud. That is, the issue is not whether the person had intent to defraud; it is that the non-American parent lacked a legitimate basis to confer legal immigration status to the non-American child.
I commend to readers the work of Powerline’s Scott Johnson, an old friend of mine and NR’s, and a Minnesota lawyer who for years has been closely following Ilhan Omar — including controversies over her immigration status. As Scott details, while Omar has benignly and succinctly described her father as an educator, he was, in fact, a Soviet-trained military officer in the regime of a Somali dictator, and he appears to have fled to Kenya with his family, including young Ilhan, when that regime was ousted. Obviously, there could be questions about whether Nur was honest in the representations he made to the U.S. government, first to obtain refugee (or asylum) status, and subsequently to be naturalized.
Now, let’s assume for argument’s sake that Nur made material misrepresentations in his immigration applications, and that Ilhan Omar’s initial admission as a refugee, her adjustment of status to lawfully present immigrant, and her ultimate naturalization as a citizen were materially derived from Nur’s misrepresentations. Mind you, those things have not been established, but let’s just stipulate for present purposes that the government can prove fraud. The fact would remain that Omar and her father came to the United States in 1995, and Omar became a naturalized U.S. citizen in 2000. That’s over a quarter century ago. The statute of limitations (SOL) for most immigration fraud crimes is five years, although it is ten years for unlawfully procuring naturalization or conspiring to do so. Even if the ten-year SOL applied, any prosecution would be long time-barred at this point. Moreover, the case is further complicated by Nur’s death in 2020: It is too late for the government to take action to strip him of citizenship (assuming there was a legal basis to do so), and he is no longer available to testify; ergo, even if there were a timely case, it would be hard to prosecute or strip citizenship from Ilhan Omar when her father, the main witness, is deceased and his citizenship status, from which hers is derived, was never rescinded.
I would thus be curious about a judge’s probable-cause rationale for issuing a search warrant. It is highly unlikely that there is a viable immigration fraud case against Omar given that the SOL appears to have lapsed over 15 years ago. Furthermore, the Washington residence for which the Omar search was authorized is not her main home; it is the one she uses when Congress is in session. So . . . did the Trump DOJ actually show probable cause that — in a part-time residence for a job (U.S. representative) that Omar has had since 2019 — agents were likely to find evidence of crimes that have been time-barred since 2015 (three years before Omar was elected)?
I’m not saying that’s inconceivable, but count me skeptical.
As Brittany also notes, there have long been allegations that Omar committed marriage fraud by marrying her brother (on paper) to help him establish a legal basis to enter the United States. Omar has denied the allegations (not very convincingly, in my opinion). The current reporting indicates that Omar is under investigation in connection with the establishment of her own basis for admission and naturalization, not her brother’s immigration paperwork. Yet, even if we assume the brother’s status is part of the investigation, any criminal prosecution would almost certainly be time-barred. The marriage in question occurred in 2009 and ended in 2018. The statute of limitations for this kind of fraud is five years. And even if Omar violated tax law by filing joint returns with her current husband while she was technically still married to her brother (something that hasn’t been established), those returns (as Brittany reports) were filed over a decade ago. Again, the SOL has expired.
To be clear, even if the major immigration transactions are time-barred for prosecution purposes, there could be a basis for charging Omar if she has made material false statements about them to the government within the SOL period. Furthermore, even if the SOL period for bringing criminal charges has lapsed, the government can still commence civil proceedings to strip U.S. citizenship from a person who has illegally procured it.
All that said, the government may legitimately seek a search warrant only to pursue a prosecutable federal crime, not as a pretext for a civil lawsuit. So here’s the question: What was the Trump DOJ’s probable cause showing that (a) Representative Omar has committed prosecutable federal crimes and that (b) evidence of those crimes — allegedly committed decades ago — would be physically located in a part-time residence she began maintaining years after the SOL on the alleged crimes lapsed?
Since search warrant applications are filed under seal with the court, we are unlikely — at least in the short term — to know the answer to this question. Unless there are leaks, we’ll be edified only if the Trump DOJ eventually indicts Omar, if there is a special counsel report, or if congressional Republicans can compel public hearings about the DOJ’s probe . . . which would be nigh impossible if Democrats take control of Congress in the midterms.