This week, the lingering allegations over the marital history of Rep. Ilhan Omar (D., Minn.) took an ominous step when Border Tsar Tom Homan publicly acknowledged that the government is looking into the matter.
Rep. Omar has long denied that she married her brother to gain his entry into the United States, but the allegation has continued to rage on the Internet and among her critics.
The question is whether this is a substantive case of fraud or defamation.
Homan stated that he was investigating whether Omar committed immigration fraud, but also noted that the statute of limitations has been an issue.
In his comment to Newsmax, Homan stated:
“I just got advised by a fraud investigator the other day on that. I asked the question, can we review the files? You know, there was immigration fraud involved. The statute of limitation became an issue in the last four years when this was first brought up…Pulling the records now, pulling the files, and we’re looking at it. But this fraud investigator, who I know personally, one of the best fraud investigators in HSI, Homeland Security Investigations, said there’s no doubt he’d review the file. So, I’m running that down this week as a matter of fact, and we’ll see.”
According to her congressional biography, Omar came to the United States with her family in the 1990s. As I have previously noted, the election of a young immigrant to Congress is genuinely remarkable and commendable.
The questions arose regarding her marriage to Ahmed Elmi in 2009. Elmi was back in the news this week with postings highlighting his lifestyle as a “dirty dandy.” Critics charged that he is actually her brother. The couple divorced in 2017, and no DNA evidence has been offered to support the claim that they are siblings.
President Donald Trump and others have been ratcheting up the rhetoric against Omar and the Somali population in Minnesota. Many of us have objected to some of the attacks on Omar as offensive. As I have previously written, the call for foreign-born U.S. citizens to “go back to their own country” has been made for decades against foreign-born U.S. citizens. However, such attacks are generally protected speech.
The allegation against Rep. Omar is not opinion, but a statement of fact.
Many news organizations have referred to the allegation as “debunked” and “unsupported.”
In defamation, truth is a defense. The truth of the matter, however, has never been easy to establish. In fairness to Rep. Omar, a person should not be in a position of having to “prove a negative.” It is not her obligation to prove that she is not a fraud or that she did not marry her brother. Her critics have never produced compelling evidence to support the claim.
Despite years of such statements by various people, Omar has never sued for defamation. It is a curious omission, since a successful lawsuit would dramatically reduce such claims, and even as a public official she could likely show actual malice in many of her critics.
Conversely, such litigation would also expose Omar to a lengthy discovery process regarding her family’s immigration history and related family issues.
I have taught defamation for over three decades, and it is rare for such an allegation to linger without some legal action by the subject. On its face, this would be a strong defamation case if the allegation is false.
The allegation would fall into one of the “per se” categories of defamation. Under the common law, these per se categories of defamation allow for presumed damages and include: (1) disparaging a person’s professional character or standing; (2) alleging a person is unchaste; (3) alleging that a person has committed a criminal act or act of moral turpitude; (4) alleging a person has a sexual or loathsome disease; and (5) attacking a person’s business or professional reputation. The language differs among the states, but the Omar allegation would constitute a criminal act as well as an attack on her character and reputation.
As a threshold matter, Omar would face a higher standard of proof due to her status as a public official. In New York Times v. Sullivan, the Supreme Court established the actual malice standard, requiring public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth. That standard was later extended to public figures.
Many critics are calling the “allegations” worthy of investigation. That is certainly protected. However, it is common to see people on television claim that she married her brother as a factual statement.
The publication of DNA results would disprove these allegations. (There are no allegations of an adopted status for the brother).
If such evidence exists, it would not just be conclusive but compelling for a jury. The question is why Omar has not elected to bring such a case, given the vast array of choices of potential defendants within the statute of limitations. It is a target-rich environment for a defamation lawyer.
As for the president, he has continued to raise the allegation: “If I married my sister to get my citizenship, do you think I’d last for about two hours or something less than that? She married her brother to get in. Therefore, she’s here illegally. She should get the hell out.”
However, he would not be a good target for such an action. The Federal Tort Claims Act, 28 U.S.C. § 2680(h), expressly bars libel, slander, or defamation claims against the United States or a federal employee acting within the scope of their employment. It is possible to sue a government employee acting outside of the scope of their employment. However, the Westfall Act protects federal employees from personal lawsuits for torts committed within the scope of their employment and substitutes the U.S. government as the defendant under the FTCA. Since the FTCA bars liability, it works to force dismissal in cases.
Moreover, this is not just another federal employee. The President also has immunity under Article II and prevailing Supreme Court caselaw. In 1982, the Supreme Court handed down Nixon v. Fitzgerald, holding that former President Richard Nixon was immune from civil suits concerning actions within the “outer perimeter” of his official duties. In 1997, the Court ruled in Clinton v. Jones that President Bill Clinton was not immune from a civil suit filed by Paula Jones — who had accused Clinton of sexual harassment — because the case involved unofficial conduct on the part of the president.
This issue is still being litigated in the case of E. Jean Carroll, who won a significant civil award against the President in New York. The United States Court of Appeals for the Second Circuit rejected the applicability of the 2024 Supreme Court ruling recognizing broad criminal immunity for former presidents as inapplicable to the civil case.
These are statements being made during a presidency and can be claimed as privileged and immune by President Trump.
The same cannot be said for a myriad of pundits and commentators who have stated this allegation as fact.
In the end, such litigation would come down to truth as a defense. These critics are saying that Omar did marry her brother. Even if they did not have a good-faith basis for the assertion, proof that it was indeed true would still be a complete defense.
On the other hand, a defamation lawsuit could offer a dispositive judgment of a court on this lingering question. The question is now whether Rep. Omar will sue.
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