Judge appears skeptical of Fulton County's case for return of seized 2020 ballots

A federal judge appeared skeptical Friday that omissions in the FBI's application for the warrant that led to the search and seizure of more than 650 boxes of 2020 election records from a Fulton County, Georgia, election site in January justify forcing the return of the seized ballots.

U.S. District Judge JP Boulee heard arguments Friday over Fulton County officials' efforts to retrieve the records from the federal government after FBI agents raided the election site looking for evidence of intentional election misconduct.

The FBI's application for the warrant lacked any such evidence and relied on information that was "incorrect and in many cases contradictory," Ryan Macias, an elections expert with twenty years of experience testified early in Friday's proceedings.

Judge Boulee, a Trump appointee, occasionally appeared skeptical that Fulton County officials had cleared the high legal bar necessary to force the FBI to return the election records.

"Doesn't the agent have to pick and choose what he takes out of reports and witness interviews?" he remarked. "Certainty the agent has to pick and choose."

While Assistant Attorney General Tysen Duva acknowledged that the agent behind the application "may have missed a thing or two," he argued that the agent included enough information to ensure the magistrate judge who signed the warrant was informed.

"What else does he have to do? He is saying there are contradictory findings here and does that throughout," Duva argued. "Are there places in the affidavit where the agent could have done better? Sure, the court will probably find that."

Duva, at the same time, sought to distance the DOJ investigation from Donald Trump's controversial director of election security and integrity Kurt Olsen, who made the criminal referral in Fulton County. Olsen has previously been sanctioned for his election claims and attempted to overturn the outcome of the 2020 election.

"There is no mention of Kurt Olsen after that," Duva said about the brief mention of Olsen in the search warrant application.

Attorney Abbe Lowell, representing the Fulton County officials, pushed back on the assertion that the omissions to the warrant application were minimal, arguing the FBI misrepresented key information. He also argued that the statute of limitations for the two laws cited in the warrant have already run out, suggesting the investigation was a fishing expedition undertaken to find a crime to charge.

"In this posture, it does not matter what the statute of limitations is," Duva responded, suggesting the government could find other crimes to charge.

"Maybe an election official will shoot another election official in the next few weeks and we'll have a crime," Lowell later quipped.

Earlier in the proceedings, Macias went through each of the claims made in the FBI's application for the warrant, seeking to cast doubt on each allegation.

"Do ballot images have any impact on the final tabulation of ballots?" asked attorney Kamal Ghali, referencing the claim that election officials produced inconsistent numbers of ballot images from the 2020 election.

"No they do not," Macias said.

"Is the absence of ballot images evidence of misconduct?" Ghali asked.

"No it is not," he responded.

Fulton County Superior Court Clerk Ché Alexander also testified that the FBI refused her request to help her make an inventory of the election records they seized from her office. She testified that she was at her office during the January raid and asked to make an inventory to secure the chain of custody for more than 600 boxes of records, including original ballots from the election.

"I asked the agent to go box by box to understand what they were taking and they said absolutely not," Alexander testified, though the FBI likely did an inventory of their own.

"I have a personal interest to do my job to keep those records safe and secure," Alexander said. "I am under a court order to maintain records I do not have."

DOJ lawyers sought to cast doubt on her claims, including by playing a video from a 2023 court proceeding when a lawyer for her office urged a judge to allow the removal of the records. According to the attorney, Fulton County wanted to make room for incoming records related to the 2024 election.

"Her obligation is over at this point," the attorney for Fulton County said in 2023. "It has a significant impact on operations. The records cannot just be kept there forever."

DOJ attorney Peter Cooch argued that the search of the office was effectively doing Alexander a favor, remarking, "Now that the records are sealed, the space is available to you now."

DOJ lawyers also played body camera footage from the raid in which Fulton County's elections director can be heard saying, "If you want to take off 700 boxes of ballots, have at it ... They can go play paper airplanes for all I care."

DOJ attorneys have insisted that the search was based on evidence of potential misconduct and accused Fulton County officials of speculating about "some kind of grand conspiracy."

"It just seems like a loosey-goosey theory," said DOJ attorney Michael Weisbuch. "They don't like the vibe of what's happening because that's not a constitutional standard."

Fulton County election officials have been pushing for the return of the records, arguing that the investigation focuses on "human errors that its own sources confirm occur in almost every election ... without any intentional wrongdoing whatsoever."

"The Affidavit omits numerous material facts -- including from the very reports and publicly-disclosed investigations that the Affiant cites -- that confirm the alleged conduct was previously investigated and found to be unintentional," attorneys for the Fulton County officials argued in court filings.

In a late setback ahead of Friday's hearing, Judge Boulee quashed an attempt to force the FBI agent behind the search warrant to testify, concluding that questioning the agent could reveal "process and scope of the DOJ's investigation," which remains ongoing.

President Donald Trump has long criticized the outcome of the 2020 election results in Georgia, personally pushing to overturn the results after his loss and later being indicted in two criminal cases over his actions. Those cases have since been dismissed, and Trump has continued to push for criminal accountability for what he baselessly alleged was a stolen election.

Through a call with Director of National Intelligence Tulsi Gabbard -- who was present at the January raid -- President Trump personally addressed some of the agents who conducted the search and told them they were doing great work by investigating Georgia's elections, ABC News previously reported.

"I was at Fulton County, sir, at the request of the president and to work with the FBI to observe this action that had long been awaited," Gabbard told lawmakers earlier this month when asked about her presence at the search. "It is my role based on statute that Congress has passed to have oversight over election security to include counterintelligence."