House GOP faces decision on congressional privilege after raid on Omar's home, Politico reports
House Republicans must decide how aggressively to defend Congress from federal prosecutors after Homeland Security investigators raided Rep. Ilhan Omar's Washington home last week and seized her personal phone, Politico reported on October 21.
The investigators were searching for evidence related to the Minnesota Democrat's immigration history, but the phone they took likely includes records of Omar's work at the Capitol, material the Constitution's "speech or debate" clause makes absolutely immune from scrutiny by federal prosecutors, with few exceptions.
A letter from Omar's attorneys to the Justice Department, reviewed by Politico, suggested that the magistrate judge who approved the search ordered investigators to contact the House's top lawyer, Matthew Berry, giving him a chance to intervene on behalf of the institution. Berry's office has been in contact with Trump administration counterparts in recent days, according to two people familiar with the investigation.
The people said investigators have not yet accessed Omar's phone. If they attempt to, they must first give Omar a chance to review its contents and assert speech-or-debate protections, with a court ultimately deciding which materials investigators may access.
Speaker Mike Johnson has yet to weigh in on the speech-or-debate implications of the raid. The House's official legal positions are set by the five-member Bipartisan Legal Advisory Group, made up of the speaker, majority leader, majority whip, minority leader and minority whip; while most of the panel's recent decisions have broken 3-2 along partisan lines, speech-or-debate issues have sometimes produced unanimous agreement.
The investigators who carried out the search presented Omar with a "speech or debate" waiver that she refused to sign, according to the letter. Courts have expressed skepticism about whether individual members can waive protections intended to safeguard the separation of powers for the entire institution.
Berry has handled a similar fight before: in 2022, federal investigators seized the phone of Rep. Scott Perry, a Pennsylvania Republican, drawing a bipartisan response from House leaders; the case produced a new precedent treating lawmakers' personal cellphones as an extension of their private offices after more than a year of litigation. Stan Brand, a former House counsel, compared the backdrop of the Omar case to the 2006 raid on Rep. William Jefferson's congressional office by George W. Bush-era prosecutors, when GOP House leaders joined Democrats in outrage.
Politico placed the investigation of Omar amid other recent Justice Department actions against Democratic members of Congress, including a failed effort to indict Sens. Mark Kelly of Arizona and Elissa Slotkin of Michigan over comments encouraging service members to refuse unlawful orders, and criminal charges against Rep. LaMonica McIver over an alleged assault of an ICE officer during a visit to a New Jersey detention facility.