The Truth with Lisa Boothe: Could Ilhan Omar Lose Her Seat in Congress? Andy McCarthy Explains the Stakes

Lisa Boothe (0:06)

Welcome to The Truth with Lisa Boothe, where we get to the heart of the issues that matter to you.

Could Congresswoman Ilhan Omar's past come back to haunt her? That's the question for today's show. From allegations of immigration fraud and questions about her family relationships, to discrepancies in her husband's finances, Omar is facing a series of questions about her past. But the big question is, could any of this jeopardize her citizenship, her seat in Congress, or even potentially open her up to criminal charges? Today, we've got former federal prosecutor and Fox News contributor Andy McCarthy. He's going to join us to separate fact from fiction and also get to the bottom of what does this all mean? Stay tuned for Andy McCarthy.

Well, Andy, it's great to have you back on the show. I appreciate you making the time.

Andy McCarthy (0:57)

Great to be here, Lisa.

Lisa Boothe (0:59)

I feel like with this Ilhan Omar stuff, there's a bunch of different buckets of potential fraud.

But let's start with the fact that federal agents searched her Washington DC home as part of this immigration fraud investigation. I guess how difficult is it to obtain a search warrant to do that, particularly against a sitting member of Congress? I guess, what does that suggest to you about potential evidence that investigators have here?

Andy McCarthy (1:29)

Well, I think the most important thing is the thing that's highlighted in your question, which is that this is not just the executive branch deciding to go after Ilhan Omar. They obviously went to a detached judicial officer, a magistrate judge who is in most districts. That's you can go to a district judge.

But usually, prosecutors go to the magistrate judge. Magistrates are not full-fledged Article III judges, but they do work for the court, not for the executive branch. And they basically help the court with the fact-finding. They help the actual Article III judges with fact-finding and that sort of stuff. So it's typical for search warrants to go to them. And as a legal matter, Lisa, there's no higher standard for a search warrant for a member of Congress. What you need for a search warrant in federal law is probable cause, both that an offense has been or is being committed, and this is very important, and then you're likely to find evidence of the crime in the place where you want to search. So for example, even if you had overwhelming evidence that somebody had committed a crime, you wouldn't be able to search their premises unless you satisfy the court that it's likely that there's going to be evidence of the crime in there. So that's the legal standard, but we all live in a practical world, and whenever the executive branch is taking legal action, particularly criminal enforcement action, against a member of Congress, it implicates separation of powers, and as a result, it's something that the court is apt to look at with real exactitude. So I think the fact that a judge or a magistrate judge issued this warrant indicates that there's got to be some pretty convincing evidence there.

Lisa Boothe (3:37)

And I guess the way I see it is there seems, there's got to be different buckets of potential fraud here. You've got the marriage to what people are saying, it shins over her actual birthdate. You've got questions over her alleged father.

I guess, how do you see those different buckets of fraud and where like the real liabilities potentially lie for her?

Andy McCarthy (4:02)

Well, I guess what I start out with is I think it's important for people to understand that the statute of limitations is a defense. It's not like it's not a requirement that the government prove that a crime took place within the limitations period in order to get charges.

We always talk in the law and in particularly criminal law enforcement about whether something is an element of the crime or is a defense. The reason I'm stressing the statute of limitations obviously is a lot of this conduct would be time barred as far as prosecution is concerned, because there's an extended statute of limitations of 10 years in cases which involve procurement of citizenship or procurement even of lawful presence in the United States, I believe, by fraud. But those activities where she came into the country and claims to have been naturalized via her father, that all happened about a quarter of a century ago, so it would otherwise be time barred even under the extended 10 year statute of limitations. And the other stuff, which I think principally involves the question of whether she was engaged in a marriage fraud for immigration purposes with her brother, even that stuff is well beyond the five year statute of limitations that would apply to this. So what people often say when they hear that outlined is that, why is the government going after this then? Because if these offenses are time barred, what that means is the government would never be able to get a conviction on them. So what is important for people to understand is that the time of an offense is not an element of an offense. And when I talk about an element, I mean every federal crime is a creature of statute. And in every criminal statute, what Congress lays out is what we call essential elements of the offense. It's usually a state of mind element, which we call mens rea. Did the person act unlawfully, intentionally, knowingly, willfully? Congress often spells that out in the statute. And then the other elements are the actions that either the defendant has to take or the government has to prove beyond a reasonable doubt in order to get a conviction. So for example, in a bank robbery, you would have to prove that the person robbed the bank. And in federal law, you'd have to prove that the thing that got robbed was a federally chartered institution, right? So in a bank robbery case, the elements would be state of mind, you know, it was done intentionally, not by accident, no mistake. Was there a robbery? And was it, you know, the jurisdictional element is, is there a federal, is it a federally chartered institution? There's nothing in there that says, and did the crime happen or are the charges being brought within five years of the bank robbery?