Fulton county accuses FBI of ‘callous disregard’ over ballot seizures

Lawyers arguing in federal court for the FBI to return Fulton county’s 2020 election records said the agency’s affidavit to obtain a search warrant relied on misrepresentations that rise to the legal standard of a “callous disregard” for the county’s rights.

“The only element that turns the election into a crime is intent, and nothing in the affidavit shows intent,” Abbe Lowell, who is representing Fulton county, said during the Friday hearing at the Richard Russell courthouse in Atlanta. He argued that the FBI is pursuing crimes for which the statute of limitations has expired.

On 28January, FBI agents descended on Fulton county’s elections offices and served a criminal warrant, seizing about 700 boxes of 2020 election documents. The seizure was part of the Trump administration’s campaign to delegitimize the results of the 2020 election and to cast doubt on the legitimacy of elections this year.

The assertions made by FBI special agent Hugh Raymond Evans in the affidavit obtaining the criminal warrant were at question in the hearing.

The affidavit relied on claims about the conduct of the election made by 11 witnesses which have been repeatedly debunked in other courts over the last five years. One of the witnesses has been sanctioned twice in court for lying about election issues, Lowell noted. Another had been convicted of secretly recording people in his bathroom.

Over the course of 26 minutes, election expert and former Fulton county elections adviser Ryan Macias explained how each of the issues raised in the federal affidavit had been repeatedly addressed in court. For example, the presence of a small number of “pristine” unfolded ballots was likely the result of military ballots or spoiled ballots being reconstituted for tabulation. Double scanning of a ballot occurs when a paper jam requires an election worker to restart a batch of ballot scans from the beginning. Witnesses confused – if not deliberately misrepresented – interim ballot counts as a reported mismatch in counts.

Macias described the evidence in the affidavit as “nonsense”. But the legal question is whether the agent had a duty to share exculpatory evidence as well as the testimony of election deniers in the affidavit, and whether failing to do so rises to a degree of incompetence to be judged as callous disregard.

The special agent in charge of the Atlanta field office, Paul Brown, resigned from his post roughly a week before agents served the warrant. No public explanation has been given.

Lowell, a prominent Washington attorney who established a new practice defending political targets of the Trump administration last year, noted how Trump had pronounced the criminality of Fulton county, quoting Trump saying: “All the crooked ballots were taken. They cheated like dogs.”

Trump’s public comments established the government’s political bias in the prosecution, Lowell said. “I will take the president of the United States at his word.”

Lowell wanted to ask Evans what he was thinking before he handed his affidavit to US magistrate judge Catherine Salinas, requesting a criminal warrant on behalf of St Louis-based US attorney Thomas Albus, whom the administration has designated as its point-person on election integrity cases.

However, judge JP Boulee quashed Lowell’s subpoena out of concern that his testimony might reveal sensitive information about the underlying criminal case that the FBI has purportedly been pursuing related to the warrant.

Justice department lawyers grilled Macias about his legal knowledge, arguing that his assertions about the quality of the affidavit’s claims have nothing to do with the legal standards establishing probable cause for a warrant to be issued or whether the FBI agent was acting out of bias when he sought that warrant.