Fulton and the DOJ square off in court over seized 2020 ballots

Attorneys for the U.S. Justice Department argued the county has no legal right to recover evidence in an ongoing criminal investigation. They said Fulton had not demonstrated the FBI showed “callous disregard” for the county’s rights to control the documents.

“They don’t like this. They think this is fishy,” argued Justice Department attorney Michael Weisbuch. “That’s not callous disregard.”

U.S. District Judge J.P. Boulee gave no indication how or when he might rule in the case. Friday’s hearing was the latest salvo in an ongoing battle over allegations of election fraud in Georgia’s largest county. President Donald Trump has long claimed — without evidence — that the election was stolen. Numerous investigations found no evidence of significant fraud, and multiple counts confirmed Democrat Joe Biden’s victory.

Since Trump returned to office last year, he has continued to make fraud allegations — this time with the power of the federal government behind him. The Justice Department started demanding copies of the ballots last fall and filed a lawsuit in December to obtain them.

The Justice Department escalated that battle in January when the FBI seized the ballots. Fulton County filed a motion to recover the documents, saying the FBI used misleading information to obtain the warrant.

Boulee heard arguments from both sides Friday.

Fulton’s attorneys argued in a hearing in U.S. District Court in Atlanta that the ballot seizure was unjustified and showed callous disregard for the county’s rights against unreasonable search and seizure.

Washington attorney Abbe Lowell, who is part of Fulton’s legal team, said the affidavit never alleged a specific crime or presented evidence of someone’s intentional wrongdoing.

He also contended that it would set a dangerous precedent to grant power to the Justice Department to seize election records from other counties across the country.

Meanwhile, the Justice Department argued that showing callous disregard is a high bar and Fulton hasn’t met it.

Tysen Duva, representing the federal government, said Boulee would probably find parts of the affidavit where the FBI agent who made the affidavit could have done a better job, but it doesn’t indicate callous disregard.

“It’s not even close,” he said.

During Friday’s hearing, Fulton Superior Court Clerk Che Alexander, who was the official custodian of the records seized by agents, testified that on the day of the raid, she asked agents to go box by box and take inventory of what they were hauling away. She testified that they told her “absolutely not.”

Justice Department lawyers told Boulee the FBI gave the county digital copies of all the materials seized. Lowell said that was not good enough, and the county needed the originals to defend itself from the election fraud claims.

Lowell suggested the Trump administration seized the records because the DOJ’s lawsuit for copies of the county’s 2020 ballots was moving more slowly than it would have liked.

Boulee questioned the federal government on that, but its attorneys said they were not aware of any coordinated efforts between the Justice Department’s civil and criminal divisions.

The FBI’s affidavit revealed that investigators largely relied on recycled information from election skeptics who have cast doubt about the county’s 2020 election for years, despite investigations, court battles and multiple vote counts, including a hand count audit of every ballot cast, that have found no evidence of malfeasance.

When agents descended on Fulton’s warehouse, they sought ballots, absentee ballot envelopes, tabulator tapes and other records from the 2020 election.

The warrant cites two federal laws the county might have violated. One requires the county to hold on to election records for at least 22 months after a federal election. The other prohibits coercion in the voting process and knowingly tabulating fraudulent ballots.

The federal statutes have puzzled legal experts, who say the county would almost certainly fall outside the five-year statute of limitations for any related charges. But on Friday, Duva, representing the federal government, said that just because other investigations haven’t found evidence of wrongdoing, it doesn’t mean the FBI can’t conduct its own investigation.

Boulee also considered a motion from the NAACP and other voting rights groups, which sought to prevent the federal government from using sensitive voter information seized by the FBI to help create a national voter registration database or use the information for immigration enforcement or other purposes unrelated to its ongoing criminal investigation.

Attorney Marc Epstein, representing the voting rights groups, said voters have an interest in the privacy of addresses, Social Security numbers and other personal information included in the seized documents. Weisbuch argued the NAACP’s motion was purely speculative and should be dismissed.

Boulee took both issues under advisement. He did not indicate when he will rule on the Fulton and NAACP motions.