Last week’s search of Ilhan Omar’s home was abnormal in several key respects, and she’ll have an opportunity to contest the government’s actions if she does find herself on the wrong end of an indictment. But the truth is, at this point, anyone who definitively proclaims Omar’s guilt or non-guilt is just guessing.
Let’s start with what we do and don’t know. We do know that federal prosecutors obtained approval from a federal magistrate judge, Matthew Sharbaugh, to search Omar’s home. (Magistrates are appointed by district court judges — not by the president — and can exercise certain administrative judicial powers, including review and approval of search warrants.) That means prosecutors convinced the magistrate judge that probable cause that a federal crime was committed exists and that investigators would find evidence of that crime in the place to be searched. We also know that prosecutors have issued at least a dozen subpoenas, which do not require any judicial review or approval. We don’t know, however, precisely what evidence prosecutors marshaled to convince the judge to sign off or how strong the current case is against Omar or others.
We know that prosecutors reportedly are focused broadly on potential false statements by Omar or her family members in immigration and naturalization proceedings. The Washington Post reports that federal authorities first investigated Omar over potential immigration violations in 2019, during the first Trump administration, but found insufficient evidence of wrongdoing; the new investigation reportedly focuses on more recent filings. The DoJ launched another investigation into Omar in 2024, under the Biden administration; that one didn’t go anywhere either. We don’t know precisely how the current investigation might differ from the prior ones (if at all) or what specific federal statute could be in play now; criminal immigration laws can be inscrutable and often overlap.
We do know as a starting point that Omar came to the United States from Somalia in the mid-1990s and was naturalized as a U.S. citizen in 2000 at age 17. How, then, could any crime fall within the typical five-year statute of limitations for federal offenses?
First, for some immigration crimes, a person’s continuing presence in the United States can extend the statute of limitations. It’s also possible that federal investigators are focused on documents submitted recently, either as applications or renewals related to Omar herself or to family members. Finally, if Omar or others engaged in obstructive acts — destruction of documents, deletion of texts, efforts to have witnesses change their testimony — in the last five years, then those crimes would fall within the statute of limitations.
And we know that Trump and his allies would delight in an Omar prosecution, regardless of the strength of the evidence. The president has used grotesque, inflammatory language to attack Omar’s ethnicity, race, national origin, and family, often calling for her to “go back” to Somalia, as he has continued to do after the search. The appearance of a sitting president’s pliant DoJ investigating one of his nemeses in this way is disturbing, though the existence of the Biden-era case complicates the idea that it’s pure political revenge.
Then there’s the question of timing. Federal authorities searched Omar’s home just 22 days before a midterm election in which the incumbent Democratic U.S. representative from Minnesota is on the ballot. That timing ordinarily would violate the Justice Department’s traditional practice — sometimes referenced colloquially as the “60-day rule” – of refraining from overt law enforcement actions (like executing a search warrant, which is plainly visible to the public) during the run-up to an election. There’s no binding law here. But the DoJ has imposed the prohibition on itself, for decades and under both political parties, to prevent prosecutors from influencing an election, or even appearing to do so.
Of course, we’ve recently seen consequential departures from the 60-day rule. In 2016, then–FBI director James Comey infamously made two announcements about the investigation of Hillary Clinton’s emails, one just 11 days before the election. We’ll never know for sure, but Comey’s public statements might have swung the outcome of the 2016 presidential contest. Clinton certainly believes they did.
And in October 2024, one month before Election Day, Jack Smith dropped a 165-page filing that detailed various misdeeds by Donald Trump around his effort to steal the 2020 election. Smith apologists note that a judge ordered him to make his filing (suggesting he had no say on the matter of timing); they omit that Smith specifically requested that the judge reverse the established rules of criminal procedure and permit him to file his brief before the defense filed its papers — which enabled him to file just before Election Day rather than after.
The historical lesson is that DoJ’s 60-day rule is an important discretionary safeguard, and only bad things await when it is bent or broken. A Justice Department spokesperson attempted to justify the timing of the Omar search with linguistic gymnastics: “The standard is purpose, not proximity to Election Day. Department policy does not require the Department to stop ongoing work during an election season.” But nobody argues that DoJ should cease all work on cases around candidates before an election; the long-standing practice simply would have prosecutors refrain from publicly visible enforcement actions during that time if they can safely be conducted after the election. And the claim that the relevant standard is “purpose, not proximity” is bogus. No prosecutor — Comey, Smith, or current Attorney General Todd Blanche — would ever acknowledge an intent to influence an election. And the rule is designed to prevent even the appearance of interference, regardless of underlying purpose.
The best explanation here is that the Justice Department under Trump and Blanche simply doesn’t care about the 60-day rule. That’s their imperative; the attorney general absolutely has the power to ignore a long-standing, internal prudential practice, and Blanche has risen to the top of the law enforcement world by trampling on tradition and trashing DoJ’s political independence. But it’s an especially dangerous principle to abandon, as Comey and Smith have shown us before when their preelection prosecutorial actions could have influenced the outcome of razor-thin presidential contests.
Another wrinkle: Omar is a sitting U.S. representative, and the Constitution’s Speech or Debate clause provides that members of Congress cannot be prosecuted or questioned over their legislative activities. The magistrate judge who approved the search warrant reportedly has therefore required DoJ’s investigative team to follow a cumbersome filtering procedure. First, prosecutors from outside the Omar investigative team must review all documents seized from Omar’s home; if any materials relate to her legislative work (which has been defined broadly by the courts), then those materials must be filtered out and kept away from Omar’s prosecutors. The arrangement will create a bureaucratic headache for the investigative team and could deny prosecutors access to materials they might otherwise find helpful. But it’s reasonably designed to protect both Omar’s constitutional rights and the investigation itself from becoming tainted by improperly accessing protected information.
The problem here isn’t necessarily the investigation of Omar itself; it’s the timing of the search warrant on the brink of an election. Omar might be guilty of some crime, or perhaps not. We’ll find out, eventually. Either way, the Justice Department has done institutional damage to itself, yet again, by letting politics drive its prosecutorial tactics.
