Right-wing media have floated weird conspiracy theories about Rep. Ilhan Omar and her immigration status for years, including loony claims that she married her own brother. There’s no evidence of that at all, mind you, though you wouldn’t know it if you perused Twitter.
These insane, overtly racist attacks on the congresswoman long remained cloistered within right-wing echo chambers, serving as red meat entrees for their legion of mouth breathers. But the Trump administration raided her home the other day. It represents a severe escalation on the part of Trump’s Justice Department, which has become something of a fascist edition of Jumanji, turning the power of conservative imagination into weaponized prosecutions.
But the most unsettling revelation from this probe appears in this unassuming paragraph from NBC’s coverage:
The investigation is seeking information to see where it leads, the source said. For example, if records, representations related to age and immigration status contain false information, that would provide material for investigators to scrutinize further. They could also examine communications related to such matters.
Nope! Prosecutors cannot pursue open-ended fishing expeditions to go looking for a crime. Or at least they aren’t supposed to. It’s part of Robert Jackson’s famous warning against “picking the man and then searching the law books.” When they’re conducting raids before developing a theory of the case, they’ve put the cart in front of the horse, where the cart is an armored vehicle.
A federal grand jury in Minnesota issued about a dozen subpoenas last week, including to members of Omar’s family. Grand juries enjoy broad latitude to issue subpoenas — the Supreme Court has said a grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” But it’s more ethically fraught when the government uses a grand jury as a sock puppet to engage in the sort of arbitrary fact-gathering on its behalf that Jackson warned about.
On Monday, Homeland Security Investigations searched Omar’s Washington, D.C. home on what a DOJ spokesperson called “a judicially authorized search warrant.”
A search warrant should require probable cause tied to some specific crime. Whichever judge issued the search warrant should have checked for that, and “we want to see where it leads” is not a recipe for an affidavit that passes muster. The Fourth Amendment says “no Warrants shall issue, but upon probable cause,” particularly describing what’s to be seized. The judge must find a fair probability that evidence of a crime is sitting in the specific place the government wants to search. Note that it’s evidence of a crime… as in, you need the crime first. “We’d like to poke around and see if there’s a crime” is the precise scenario the Fourth Amendment exists to prevent, and any judge who signed off without more dropped the ball.
Though perhaps we’re reading too much into the term “judicially.” It suggests that a judge actually evaluated the government’s request, but immigration officials have taken the stance that they don’t need judges to sign off on warrants, so maybe “judicially” is more of a rhetorical flourish for DOJ spokespeople these days.
In any event, NBC’s source is laying out the opposite of probable cause — at least as of Wednesday — which casts a lot of doubt on that Monday warrant.
Omar was naturalized in 2000 at the age of 17. Under 18 U.S.C. § 3291, the federal crimes covering naturalization and citizenship fraud carry a 10-year statute of limitations. Whatever is or isn’t wrong with the paperwork filled out on behalf of a child refugee a quarter century ago, it stopped being prosecutable around the time of the iPhone 4. DHS Secretary Markwayne Mullin has gone on record that he believes “there’s no expiration” to lying on an application, but he is not a lawyer… and it shows. Civil proceedings are one thing, but once grand juries and raids enter the picture, this matter falls squarely within the bounds of criminal law where the statute of limitations very much applies.
The administration seems to be searching — without any reason to believe it exists — for a bootstrap. They want to find some sort of recent sworn statement that they can claim brings the fraud into the present. But that’s not following a crime, so much as shopping for one.
If NBC’s source is wrong, and the government has probable cause of a specific crime, this would be the time to unveil it. Because right now it looks like they went off half-cocked to harass a member of Congress based on a hunch.
But, of course, the real reason the government took this seemingly premature leap has everything to do with ginning up lurid headlines about Omar sooner rather than later. The department’s own rulebook may say that “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election,” but, well…
Early voting in Minnesota starts tomorrow.[1]
Omar fled a civil war at 8 and spent a few years in a Kenyan refugee camp before finally coming to the United States. Donald Trump is on record whining that Omar “comes in from a country without laws” and then has the nerve to say “I have a constitutional right.” But that’s why she came here! To live in a country of laws, where the government is not supposed to be allowed to rummage through your house as part of a conspiracy theory scavenger hunt.
[1] And mail-in ballots have already gone out, so some people have been casting votes for almost a month, even if the actual “early voting” period starts tomorrow.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
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