Ilhan Omar’s Constitutional Trump Card

Much is unknown about the search by federal agents of the home of Congresswoman Ilhan Omar on Monday. The wires call the development a “startling escalation.” Ms. Omar denounces the search as an “attempt to target political enemies.” Last month Homeland Security Secretary Markwayne Mullin vowed that “Something’s going to happen” in respect of Ms. Omar. The probe reportedly revolves around her immigration status. We carry no brief for Ms. Omar, whose record as a lawmaker is marred by unrelenting hostility to Israel and the best of American values. She has more than earned her place in “the Squad.” The New York Times reports that the warrant wielded by the federales lists a “series of potential immigration crimes under investigation, including false statements and fraud in immigration paperwork, as well as a general conspiracy charge.” The pursuit of criminal charges against a sitting solon treads on the Constitution’s Speech or Debate Clause. That ordains that lawmakers “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”The Supreme Court has held that the privilege — which is absolute — applies whenever a lawmaker is engaged in legislative activity. The high court has held that once the privilege is attached the underlying action it “may not be made the basis for a civil or criminal judgment against a Member.” We marked the reach of the Speech or Debate Clause when it was invoked by Senator Lindsey Graham against Special Counsel Jack Smith in respect of January 6.That case went to the Supreme Court. The justices, in a unanimous and unsigned order, preserved a lower court ruling that prosecutors could not question Graham about protected legislative acts, but could ask him about non-legislative actions like public statements, campaign coordination, and efforts to pressure election officials. That ruling split the difference, constitutionally speaking, though it was shockingly parsimonious with respect to the privilege.The reach of the Speech or Debate Clause has resurfaced as disclosures have mounted regarding Mr. Smith’s work. The special counsel insists he has respected the privilege. Our A.R. Hoffman reports, though, that Senator Marsha Blackburn’s suit against him, filed in federal court last month, alleges that Mr. Smith’s surveillance of the senator’s telephone records “violated Senator Blackburn’s privileges under the Speech or Debate Clause.” The Times reports that the warrant was a result of wrangling between prosecutors and the judge, and that it was “only approved after a discussion of the possible constitutional issues, like the speech or debate clause, surrounding her status as a member of Congress.” The government will likely contend that the alleged crimes far predate her election to Congress in 2018. Born at Mogadishu, she came with her family to these shores in the 1990s.Mr. Trump declared on Monday that Ms. Omar “comes from a country that is a non-country. And then she comes over here and she complains about our Constitution. I think she’s a terrible person.” If Ms. Omar’s constitutional complaints include the Speech or Debate Clause, her case could be stronger than Mr. Trump reckons. On this point, there is precious little ambiguity — “they shall not be questioned in any other Place.”

Ilhan Omar’s Constitutional Trump Card

Ilhan Omar’s Constitutional Trump Card

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