In light of the search warrant executed at Democratic Congresswoman Ilhan Omar’s residence — 22 days before the midterm elections — I wanted to provide some points of law surrounding the potential targeting of President Trump’s political enemies.   

Congresswoman Omar claims she is being targeted for her views.  If true, this would raise serious First Amendment and democratic legitimacy concerns. President Trump claims that he has nothing to do with the Department of Justice’s seeking and executing a judicially granted search warrant on Ilhan Omar’s home as part of a criminal investigation. Anonymous sources have noted that the investigation is related to immigration fraud (others have speculated there may be other potential crimes involved).  

This is just a quick, rough primer because it is midterm season (not the midterm elections – my grading of my students’ Criminal Procedure and Torts midterms — good luck law students!):

• The search of a home, a main locus of our Fourth Amendment privacy, requires a judicially granted warrant.  This warrant will likely remain sealed until charges are filed and thus cannot be analyzed currently. 
  • A judge (likely a federal magistrate) had to decide that there was probable cause that there would be evidence of a crime in Representative Omar’s home.  Probable cause, as a standard of suspicion, is a “fair probability.” This standard has not been assigned a numerical percentage, but probable cause is considered lower than more likely than not (the preponderance of the evidence standard for a civil trial) and much lower than beyond a reasonable doubt (the standard for a criminal conviction). The warrant application was likely filed with an affidavit establishing the reliability of any informants (especially if they are confidential) and the corroborating evidence found by the Department of Justice.  
  • Just because a magistrate has signed off on a warrant does not mean there was probable cause, although limited studies have shown that a high percentage of searches pursuant to warrants turn up evidence.  If charges are filed and the search warrant is challenged at trial, a trial court and all subsequent appellate courts would give some deference to the magistrate judge, and would have to determine if “substantial evidence” supports the magistrate’s finding of probable cause. If the magistrate erred and the warrant is plainly not supported by probable cause, Representative Omar could get the evidence found in her home suppressed, even with the good faith exception to the exclusionary rule for reliance on a facially valid warrant. Of course, a grand jury would have to indict Representative Omar for a federal crime before any of this would be material, and the search may have turned up no evidence of a crime.
  • If the search is plainly unreasonable, Representative Omar could initiate a civil lawsuit based on a violation of her Fourth Amendment rights, but because of qualified immunity, it would have to be an unreasonable search based on clearly established law.

• Former FBI Director James Comey, like Representative Omar, claimed that the Trump administration targeted him for malicious prosecution due to Comey’s criticism of President Trump.  Mr. Comey had been charged with lying to Congress.  Those charges were dropped for unrelated reasons; the appointment of the prosecutor who brought the charges violated the Appointments Clause of the Constitution. Mr. Comey has also been indicted by a grand jury for threatening the President, a federal crime, for an Instagram post where he spelled out in seashells on the beach “86 47,” which has been interpreted to mean kill (86 skidoo) President Trump (the 47th President).
  • Although threats against the President need to be taken seriously, this seashell display is likely protected political hyperbole, and 86 can mean to get rid of, not just kill.  This prosecution likely violates the First Amendment, but federal prosecutors are bringing in other evidence for context. 

• Representative Jamie Raskin, ranking member of the House Judiciary Committee, issued a statement citing other prominent figures, besides Ilhan Omar and James Comey, whom Representative Raskin believes have been targeted for their political views by the Trump administration.

• Defenses of malicious and selective prosecutions are very difficult to successfully advance.  Based on the Due Process and Equal Protection Clauses, they protect those against criminal prosecution if a primary motive for prosecuting someone is vindictiveness, or if similarly situated individuals have not been prosecuted for the same crime.  The reason judges do not often permit these defenses to dismiss a criminal charge is because prosecutors have a great deal of discretion to pursue charges.  Due to separation of powers issues, the executive branch is generally entrusted to decide how to enforce the laws.
  • If charges are filed and Representative Omar can show a discriminatory- or animus-related motive, the burden switches to the Department of Justice to demonstrate its permissible reasons for prosecuting Representative Omar.

• The Department of Justice is said to have a policy (though not formalized in its policy manual) of not taking prosecutorial steps that could influence an upcoming election, but Departments of Justice associated with both Democratic and Republican administrations does not always adhere to this policy.  The investigation into Representative Omar has been recognized since mid-December 2025, and Representative Omar says it is baseless.

• If you have further questions, let me know.  I can blog again if the search warrant is unsealed.