Attorneys for Fulton County, Georgia, are set to argue in federal court Friday for the return of over 650 boxes of material related to the 2020 election after the FBI seized the boxes at the county’s elections office last month while executing a search warrant.
Last month, the FBI executed a search warrant at a Fulton County elections office, seeking to take “all physical ballots” from the 2020 vote, as well as tapes from vote-tabulating machines, ballot images and voter rolls.
After the search, Fulton County Commission Chairman Robb Pitts and the county’s Board of Registration and Elections filed a lawsuit to compel the return of the boxes. The county has asked for the “return of all original seized materials” and asked the judge for an order instructing the government “to maintain, but not review, any copies of the seized materials until this matter is resolved.”
Fulton County said in court filings that the Justice Department’s search and seizure of documents “callously disregards multiple Fourth Amendment rights,” of the county and was a “gross intrusion” of the state’s role in elections. The county asked U.S. District Judge Jean-Paul Boulee to order the return of all of the documents.
Boulee was nominated to the federal bench in 2019 by President Trump.
On Thursday, Boulee ruled that he would not force the FBI agent who submitted a sworn affidavit in support of the search of Fulton County’s election hub to testify at the hearing, after the county attempted to force him to speak about the affidavit in court.
Last month, Boulee attempted to force Fulton County and the Justice Department to mediate the dispute instead of going to court, but that mediation failed, Boulee said, resulting in Friday’s hearing becoming a necessity.
In court filings ahead of Friday’s evidentiary hearing, the Justice Department argued that Fulton County’s goal is to “disrupt an ongoing federal investigation” through their filings, and asked Boulee to deny the county’s motion.
The government’s conduct, the county argued, “has deprived Petitioners of their constitutional rights. The resulting injury will continue if these records are not returned to their lawful custodian.”
The Justice Department said it was “scrupulously careful” to comply with any Fourth Amendment concerns raised by the county, and said it searched the county’s election offices “only after obtaining a warrant based on a magistrate judge’s probable-cause determination.”
In court filings, the Justice Department said it is investigating “irregularities that occurred during the 2020 presidential election in the County,” and is centered on if election records were properly maintained, and whether there was “procurement, casting, or tabulation” of fraudulent ballots in 2020.
An affidavit written by an FBI agent unsealed earlier this month detailed the legal basis for the search, and also said the FBI investigation was initiated following a referral from an attorney who worked to overturn the election results in 2020.
“Despite years of investigations of the 2020 election, the Affidavit does not identify facts that establish probable cause that anyone committed a crime. Instead, FBI Special Agent Evans (the “Affiant”) all but admits that the seizure will yield evidence of a crime only if certain hypotheticals are true,” the county argued. “Unsupported by probable cause and dependent on unsubstantiated hypotheticals, Respondent’s seizure violated the Fourth Amendment.”
State officials in Georgia, including the Republican governor and secretary of state, have defended the integrity of the 2020 election for years, noting that three separate counts confirmed that Joe Biden defeated President Trump in the state. The results in Georgia were at the center of Mr. Trump’s efforts to overturn the election, and Fulton County, which includes Atlanta, is a key Democratic stronghold.
The affidavit said the current investigation originated from a referral sent by Kurt Olsen, who the FBI describes as a “Presidentially appointed Director of Election Security and Integrity.” In 2020, Olsen was an attorney who worked with Texas Attorney General Ken Paxton to urge the Supreme Court to overturn the election results.
In 2022, Olsen was subpoenaed by the House Jan. 6 Committee, which was investigating the aftermath of the 2020 election and the Jan. 6, 2021, attack on the U.S. Capitol. The subpoena alleged that Olsen “contacted various high-level officials at the Department of Justice” at the president’s direction to discuss filing challenges to the election results. The committee said Olsen spoke multiple times with Mr. Trump on Jan. 6, 2021.
