FBI probe of 2020 election count in Georgia faces crucial court hearing

The FBI’s investigation of the 2020 election results in Georgia will face a key early test Friday as a federal judge weighs whether agents misled the court while seeking a warrant to seize thousands of ballots from the state’s most populous county.

Officials in Fulton County, home to Atlanta, have urged U.S. District Judge J.P. Boulee to order the return of more than 650 boxes of election materials seized during a January raid on the county’s primary election warehouse and the office of the county’s clerk of courts.

Fulton County officials maintain that agents duped a federal court magistrate into approving the warrant by presenting conspiracy theories and previously debunked claims of election irregularities as evidence of possible crimes.

The seizure of voting materials has stoked alarm among election officials and democracy advocates across the country, who have condemned the Justice Department probe as an attempt to substantiate President Donald Trump’s baseless and long-held grievances about his 2020 election loss to Joe Biden.

Multiple audits, nearly a dozen court rulings and Trump’s former attorney general, William P. Barr, have previously concluded there was no evidence of widespread fraud sufficient to affect the outcome of the 2020 race in Georgia, which multiple counts have shown that Trump lost by about 12,000 votes.

Despite that, Fulton County has remained a persistent target for conspiracy theorists spurred by Trump’s continued fixation on the outcome of the 2020 vote. Friday’s hearing marks the first time Justice Department officials will publicly address questions about their probe and the investigation that led to the Fulton County seizure.

Biden’s win in Georgia was not necessary for his victory; he won the electoral college by 306-232, a 74-point margin, and Georgia has 16 electoral votes. But discrediting the results from Fulton County could help Trump question the 2020 outcome more broadly.

The Justice Department investigation is being overseen by Thomas Albus, the U.S. attorney for the Eastern District of Missouri, whom Attorney General Pam Bondi recently appointed to a special role probing election issues nationwide. The Georgia inquiry was initiated by a referral from former Trump campaign lawyer and prominent election denier Kurt Olsen, who was recently named to a White House post tasked with monitoring election integrity.

In recent months, the Justice Department has also launched an inquiry into Arizona’s 2020 results. Trump, meanwhile, has continued to demand that Republicans “nationalize elections,” imposing voter ID requirements, banning voting machines and eliminating mail-in voting in states across the country.

Lawyers for Fulton County have called the seizure of its 2020 election materials, and the warrant that authorized it, “unprecedented in American history.” They have characterized the theories cited to obtain the warrant as little more than “ill-informed … speculative assertions that, even if true, concern records of no consequence to the outcome of the election.”

County attorney Y. Soo Jo wrote in a recent court filing that “knowing that the federal government can physically seize and rummage through election records long after the election has been certified will predictably chill voter participation and undermine voters’ confidence in the security and secrecy of their ballots.”

In addition to ballots, the warrant authorized seizure of tabulator tapes from voting machines used in the vote, stored electronic images of the ballots and the county’s voter rolls from 2020.

To prevail in their request for the ballots’ return, the county aims to prove the FBI showed a “callous disregard” for constitutional protections and that the search was unreasonable because there was no probable cause to suggest a crime occurred.

To obtain the warrant, federal authorities were not required to prove any of the claims they laid out as the basis for their search. Instead, they had only to convince a judge that there was a substantial likelihood a crime had occurred and that evidence could be found at the specified locations.

In approving their request, U.S. Magistrate Judge Catherine M. Salinas determined that investigators had met that threshold. But Boulee, a Trump appointee, has already rejected Justice Department arguments that her approval should end debate over whether the search was justified.

He has said he intends to hear several hours of testimony Friday, although he has rejected the county’s request to put Hugh Raymond Evans, the FBI agent who submitted the affidavit, on the witness stand.

The affidavit that Evans submitted to obtain the warrant said authorities were seeking evidence to determine whether “deficiencies” in Fulton County’s 2020 vote tabulation were the result of intentional wrongdoing that could constitute a crime.

It relied on accounts from 11 people - many of whom are prominent election deniers or members of Georgia’s Republican-controlled State Election Board - to suggest that “unknown persons” may have sought to tamper with the county’s 2020 results.

But the issues Evans cited, including claims of duplicate ballots and missing ballot images, have been addressed by previous audits and investigations that found no evidence of wrongdoing. County officials described many of them in a court filing as “types of human errors that … occur in almost every election - without any intentional wrongdoing whatsoever.”

For instance, Evans cited the fact that Fulton County no longer has scanned images of all 528,777 ballots cast in the 2020 race as evidence of a possible tampering. But officials have dismissed that shortcoming as insignificant, given they still have original paper versions of those ballots.

The affidavit also suggested that the county may have scanned more than 3,000 ballots twice during a recount of the 2020 vote. But previous state investigations have produced no evidence that those double scans meant the ballots were actually counted twice. Even if they were, those earlier probes concluded, the outcome would have benefited Trump.

Fulton County lawyers also say that even if federal authorities were able to substantiate claims of malfeasance in the vote count, they still could not pursue criminal charges under the two laws Evans cited in his affidavit as a basis for potential prosecution.

Both statutes - one requiring officials to retain voting records, and the other criminalizing efforts to defraud voters by denying them an impartial election - have five-year statutes of limitations.

So far, Justice Department attorneys have been reticent to disclose any details on the case they are building. They have accused county officials of using their request for the return of the seized ballots as a backdoor effort to put the entire investigation on trial.

“They do not need (or even want) the records,” Albus wrote in a recent filing. “They just don’t want the United States to have them.”