Justice Department Says the Warrant for the Ilhan Omar Home Search Is Only Partly Executed

The Justice Department has asked a federal court to keep sealed the warrant for the 12 October search of Representative Ilhan Omar’s Washington home, arguing that it “hasn’t been fully executed yet,” MPR News reported on Wednesday 28 October.

The filing, by Jeanine Pirro, the US attorney for the District of Columbia, answers a request from news organisations and Judicial Watch, a conservative advocacy group, that Judge James Boasberg unseal the warrant and related records. The Star Tribune counts 15 news outlets among the applicants; Fox 9 counts 14. “Unsealing everything now … imperils the investigation, and publicly exposes suspected criminal wrongdoing,” Ms Pirro wrote, according to MPR. The government “expects that the warrant will be fully executed in short order.” Her office “will not necessarily oppose unsealing at least some of the search warrant records” later, the Star Tribune reported.

Homeland Security Investigations agents searched the house in an investigation of potential fraud in her family’s immigration paperwork, the Star Tribune reported. No charges have been filed. A source familiar with the investigation told the paper that agents seized Ms Omar’s mobile phone, laptop, notebooks and passport. Ms Omar has denied wrongdoing and called the search part of an intimidation campaign by President Trump, and her lawyers have asked for the return of her property, including the phone, MPR reported. This publication’s profile of Two Taps & Friends noted that the search had already become a subject for legal commentary.

What does “executed” mean for a search warrant?

Carried out within a fixed window, and the window is short. Rule 41 of the Federal Rules of Criminal Procedure requires every search warrant to command the officer to “execute the warrant within a specified time no longer than 14 days.” The officer who executes it “must enter on it the exact date and time it was executed,” prepare an inventory of what was taken, and leave a copy of the warrant and a receipt. The warrant is then returned to the magistrate judge named in it. This publication has written before about how much of a federal investigation the magistrate does.

Phones and computers have their own provision. Under Rule 41(e)(2)(B), a warrant may authorise the seizure of electronic storage media, and “unless otherwise specified, the warrant authorizes a later review of the media or information.” The next sentence is the one that matters here: the time for executing the warrant “refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.” Searching the contents of a seized phone is, in the rule’s terms, not execution.

What could still be unexecuted?

The reports do not say. The arithmetic shows why the question arises. The dates in the table come from the reporting; the deadline is this publication’s calculation, and the warrant’s issue date has not been made public.

A warrant issued on or before the day of the search would have had to be executed by 26 October at the latest. The filing came the next day and said execution was incomplete. Under the rule, the examination of the phone and laptop would not explain that. What remains could be a further place or item the warrant covers, a term the issuing judge set under the rule’s “unless otherwise specified”, or a later warrant. The filing is heavily redacted, Fox 9 reported, and none of the accounts of it identifies which.

Has the judge ruled?

The reports disagree. Fox 9 reported that the request to unseal was denied on Tuesday. MPR News, reporting the same filing, said a federal judge will still need to rule, and that if one orders release Ms Pirro could ask for time to seek an emergency stay; the Star Tribune’s account reports no ruling. This publication has not seen a court order and treats the request as undecided.

The government’s legal position is narrower than a claim of permanent secrecy. It argues that no law requires unsealing during an active investigation and that the public has no First Amendment right to the records now, according to MPR and Fox 9, and it says it may reconsider once the warrant has been carried out. Ms Pirro has also said there are several investigations relating to Ms Omar, including one into her financial disclosures, the Star Tribune reported. The rule gives agents fourteen days to execute a warrant, and sets no fixed period for reading what they took.