Did an FBI agent deliberately mislead a federal judge to secure the warrant that initiated the bureau’s unprecedented seizure of 2020 election records from an election facility in Fulton County, Georgia, last month?
That’s the explosive question that county officials are now attempting to answer in their lawsuit to force the Department of Justice (DOJ) to return the sensitive election records, which included original ballots. The county has suspicions it was intentional deception.
At the county’s request, a Trump-appointed federal judge has called for a court hearing this Friday to force FBI special agent Hugh Raymond Evans to testify about the extraordinary affidavit he presented to a court to justify the FBI’s raid.
The FBI has asserted that its seizure of the records was part of its investigation into whether “deficiencies or defects” occurred in Fulton County’s handling of the 2020 election and whether its tabulation of votes resulted in violations of election record retention rules and voter fraud laws. But Fulton County claims that Evans’ affidavit effectively violated the Constitution.
Court filings already indicate that the search and the investigation as a whole are both legally and politically suspect.
So far, proceedings in Fulton County’s lawsuit have revealed that the bureau’s probe was initiated by debunked voter fraud assertions about the 2020 election, which President Donald Trump has falsely claimed was stolen from him.
Trump has also become intimately involved in the FBI probe by dispatching Director of National Intelligence Tulsi Gabbard to take part in the elections facility raid and by personally thanking the agents who carried out the search.
In an attempt to shield Evans from testifying this Friday, the DOJ asked U.S. District Judge Jean-Paul Boulee, who was nominated by Trump in 2019, to reverse course and cancel the hearing.
Boulee has yet to rule on the DOJ’s request. However, so far, the judge has been open to shedding light on the circumstances leading up to the FBI’s raid.
The judge previously ordered the DOJ to unseal the affidavit that outlined the FBI’s justification for seizing over 650 boxes of records from the election facility — a highly unusual and rare occurrence in an ongoing criminal investigation.
Wednesday, Boulee also ordered the DOJ to unseal additional records, including its original rationale for wanting the search warrant affidavit sealed.
The affidavit, which the DOJ divulged earlier this month, revealed that the bureau’s search of the Fulton County elections facility largely relied on numerous widely debunked claims about ballots and elections from several witnesses.
While many of the witnesses’ names were redacted in the affidavit, a Democracy Docket analysis of the document found that many of the claims Evans presented to the court came from notorious conspiracy theorists and election deniers, some of whom now work in the Trump administration.
For that reason, Fulton County officials have argued that Evans intentionally misled U.S. Magistrate Judge Catherine Salinas, who approved the FBI’s search warrant, by omitting material facts that would have discredited allegations made by certain witnesses in the affidavit.
A central argument in Fulton’s suit is that Evans, in addition to relying on claims from dubious witnesses, failed to sufficiently present objective, articulable facts demonstrating he had probable cause to believe that a crime occurred. That’s a basic standard required by the Fourth Amendment, which prohibits unreasonable searches and seizures.
Instead, county officials said Evans violated the Fourth Amendment by relying on “unsubstantiated hypotheticals.” The agent claimed in the affidavit that violations of federal election record retention rules and voter fraud laws would only have occurred if the alleged “deficiencies or defects” the FBI is investigating “were the result of intentional action” by “unknown persons.”
But critics say the affidavit primarily described disparate issues that — if accurate — would likely result from human error.
In its initial defense against Fulton County’s lawsuit, the DOJ insisted Evans did establish probable cause. However, it did so by repeatedly pointing to Salinas’ approval of the search warrant, implying that it could not have violated the Fourth Amendment because she authorized the raid.
In a filing Tuesday, Fulton County officials slammed the department’s defense, noting that federal courts have previously held that a warrant signed by a magistrate judge could not be used as a defense against potential Fourth Amendment violations if the warrant was obtained through an affidavit containing intentionally or recklessly false information.
Fulton also cautioned that the department’s “novel theory of probable cause” could give federal investigators untold powers to seize any election-related records anywhere.
“The DOJ could seize any record, no matter how unfounded the claim of a violation, so long as the records would be evidence of a crime if someone had the intent to use them in a criminal scheme,” the county said. “That logic would eviscerate the probable cause standard and give the federal government blanket authority to seize anything it desired.”
In its initial filing, the department also claimed that Fulton officials didn’t have standing to demand the return of the election records because they were not in possession of the materials at the time of the raid.
The FBI had seized the records from Che Alexander, the clerk of the Fulton County Superior Court, who was holding them under seal in accordance with Georgia law. That meant that only Alexander could demand their return, the department argued.
Just days after the department filed its reply, Alexander requested and was approved to join Fulton County’s lawsuit. Though she disagreed with the DOJ’s claim that the county couldn’t sue, Alexander said she wanted to take part in the suit “to avoid unnecessary litigation about the issue.”
Alexander joining the lawsuit is notable. Before the FBI raid, the DOJ repeatedly tried to force her to hand over the election materials, first through a demand from Attorney General Pam Bondi and then through a lawsuit by Assistant Attorney General for Civil Rights Harmeet Dhillon.
Fulton County officials have argued that the FBI spawned its criminal investigation to take immediate possession of the election materials on behalf of the DOJ. In doing so, the bureau intentionally circumvented pending judicial proceedings over the materials and also violated Georgia state law, which required the documents to be held under seal and could not be produced absent a court order, county officials have argued.
