Attorneys for Rep. Ilhan Omar accuse DOJ of violating judge's orders

Attorneys for Representative Ilhan Omar have accused the Justice Department of violating a magistrate judge's order by failing to follow certain protocols designed to safeguard her constitutional interests as a member of Congress during the search of her home in Washington, D.C.

In the Oct. 16 letter, Omar's attorneys Amy Jeffress and Joshua Matz asked the government to immediately return the congresswoman's property, and they also demanded all video and audio recordings of the search be preserved.

"This vindictive, retributive, and politically motivated criminal investigation into one of the President's chief congressional critics violates Representative Omar's constitutional rights and threatens the separation of powers," they wrote in the letter, which was reviewed by CBS News.

In a statement, a Justice Department spokesperson disputed the claims in the letter, saying it was "riddled with false allegations and inaccuracies."

"Our attorneys and law enforcement partners complied with all court orders and legal obligations, as they always do," the spokesperson said. "Leaking a letter to the press right after sending it is not good faith. It is a publicity play."

Agents from the Homeland Security Investigations executed a search warrant at Omar's home on Monday, as part of a sprawling criminal investigation into her family's history for evidence of possible fraud and false statements in their immigration paperwork. 

Her personal cellphone was among the materials seized in the search, CBS News previously reported, and grand jury subpoenas were also issued just days before the search to some of Omar's family members.

The search warrant was first presented to a magistrate judge in U.S. District Court about a week before it was executed. 

Prosecutors and the judge engaged in a lengthy back-and-forth, after the judge raised concerns that the search warrant failed to incorporate any protocols to protect Omar's legislative privileges under the Constitution's speech and debate clause, CBS News previously reported.

Those protections stem from the 2007 United States v. Rayburn House Office Building D.C. Circuit Court case, which held that in a criminal investigation of a sitting member of Congress, the executive branch can't review information that is seized in a search without allowing that member to first screen it for legislative privilege.

Initially, prosecutors tried to argue the case shouldn't apply because the search was being carried out at Omar's home, and not at her congressional office, CBS News previously reported.

In the letter to the Justice Department, Omar's lawyers alleged several key requirements imposed by the judge had been violated.

HSI agents, for example, were supposed to notify both Omar and the House of Representatives Office of General Counsel of the execution of the search warrant — a step Omar's lawyers say never took place.

Agents also allegedly prevented her from contacting her attorney for more than an hour after the search started, the letter alleges, even though she and her counsel were supposed to be presented with a copy of the search warrant at the outset.

The timing of the search warrant and issuance of grand jury subpoenas in the case have raised eyebrows among many veteran former prosecutors. 

Such overt investigative steps involving a sitting member of Congress so close to an election appear to run afoul of internal Justice Department guidelines, which state that prosecutors and agents should avoid taking overt investigative steps that could affect the outcome of an election or give one candidate an advantage or disadvantage.

Omar's lawyers also raised these same concerns in their letter to the department, saying: "Historically, the Department has refrained from this type of investigative activity so close to an election, so as to avoid even the appearance of politically motivated law enforcement actions. But the political motivations behind this pre-election investigation and search are clear as day. For the reasons given above, this search was neither justified nor lawful."

Omar has long been a frequent political target by President Trump and his allies. Mr. Trump has also made derogatory comments about her Somali heritage and her religion, and he has repeatedly accused her of immigration fraud.

"There is no legitimate basis for any suggestion that she has violated any law concerning her citizenship status," her attorneys wrote in the letter to DOJ, adding the search of her home "arose from a years-old, tired conspiracy theory concerning conduct stretching back decades."

Department of Homeland Security Secretary Markwayne Mullin made unusually public remarks about the nonpublic criminal investigation in a podcast on Friday, calling it a "strong case."

In an interview with Andrew Kolvet, who hosts "The Charlie Kirk Show," Mullin volunteered that multiple warrants had been served on Monday, adding that a judge had authorized the enforcement action and investigators expected to present their case to a grand jury.

It is unusual for federal officials to speak openly about ongoing criminal investigations beyond confirming a court-authorized search was conducted, in part due to due process protections and grand jury secrecy rules.