A federal judge in Georgia denied a motion by officials in Fulton County, Georgia, to return ballots and other materials from the 2020 election that were taken by the FBI in a court-authorized search earlier this year.
U.S. District Judge Jean-Paul Boulee said Wednesday that attorneys representing Fulton County did not establish enough evidence to prove that the FBI affidavit at the center of the case was deficient in a way that had a “callous disregard” for the county’s rights.
Boulee, however, said that the affidavit was “defective in some respects” by including misleading statements about the final ballot count in 2020 in the county, and that there were “troubling” omissions about ballot mechanisms in the documents.
“While the Affidavit was certainly far from perfect, this is not a situation where an officer left out all the facts that might undermine probable cause or where an officer intentionally lied,” Boulee wrote, adding, “the Court cannot say that the Affidavit was so deficient that its shortcomings rise to the ‘high[] threshold’ of callous disregard.”
Boulee’s decision comes more than two months after FBI agents executed a search warrant at a Fulton County elections office, seeking to take “all physical ballots” from 2020, as well as tapes from vote-tabulating machines, ballot images and voter rolls. Home to Atlanta, deep-blue Fulton County was crucial to former President Joe Biden’s narrow 2020 win in Georgia, and Mr. Trump and his allies have long alleged — without evidence — that the county was awash with fraud.
In a 68-page ruling, Boulee acknowledged that “the seizure in this case was certainly not perfect,” and said “the events leading up to this case are, in a variety of ways, unprecedented.” But he wrote that he needs to apply the legal precedents around court-ordered seizures evenly.
The judge rejected Fulton County’s argument that the FBI’s seizure of the ballots was a violation of the county’s 10th Amendment rights to administer elections. He also rejected an argument that the warrant was obtained “in bad faith” after the Justice Department faced pushback in a separate civil legal proceeding surrounding the documents.
“Petitioners have not shown that their rights were callously disregarded either through supposed defects in the warrant or through the manner in which the warrant was executed,” Boulee wrote. He added that the county’s evidence of irreparable harm if the election materials are not returned was “unpersuasive.”
Attorneys for Fulton County and spokespeople for the Justice Department did not immediately respond to requests for comment.
Fulton County filed a lawsuit earlier this year asking for the seized materials to be returned and for an order instructing the government “to maintain, but not review, any copies of the seized materials until this matter is resolved.” It argued the search “callously disregards multiple Fourth Amendment rights” of the county and was a “gross intrusion” into the state’s role in elections.
According to a controversial FBI affidavit at the center of the search, the bureau is investigating potential violations of two federal laws.
One of those laws makes it a crime for elections officials to intimidate voters and to deprive them of a fair election by submitting fraudulent ballots or voter registration applications. The other law requires election officials to retain federal election records for 22 months.
Abbe Lowell, an attorney representing the county, argued that the statute of limitations on both potential violations expired. Boulee, however, rejected that argument.
While the election was more than five years ago, Boulee wrote, “the Court cannot ignore” witness testimony included in the affidavit that alleges ballot images in the county’s possession may have been modified as recently as 2024.
At a contentious hearing in March, Lowell argued “there’s nothing” in an FBI affidavit backing the search warrant “to support that there’s an ongoing investigation that matters” in Fulton County. He did warn, however, that the ballots may be used “for some future crime that may not exist.”
Lowell argued that “a number of things were omitted” from the affidavit at the heart of the search regarding the election and alleged misconduct by the county. A witness for Fulton County, elections expert Ryan Macias, testified that “information in the affidavit does not make sense.”
Macias said there was “incoherent terminology” in the affidavit, and testified the agent and FBI “conflate certain things.” He told the court that the election “has already been looked at and investigated,” and the affidavit had just recycled debunked rumors from over six years ago.
During the hearing, Boulee said of the Justice Department’s defense of the seizure of more than 630 boxes of election material, “that piece bothers me” a “rather considerable” amount.
“How far does that affidavit have to go?” Boulee asked Justice Department attorney Tysen Duva, who led arguments for the federal government.
Duva dismissed Lowell’s arguments as “woefully inadequate” and responded to Boulee’s questioning about flaws in the affidavit by saying, “this isn’t grading a paper.”
“Are there places in the affidavit where the agent could have done better? Sure,” Duva said, adding he “may have missed a thing or two.”
Duva also conceded the FBI’s seizure of the ballots may not lead to any charges.
“If there is an indictment, that remains to be seen,” he said. “What may happen later? Maybe nothing.”
State officials in Georgia, including the Republican governor and secretary of state, have defended the integrity of the 2020 election for years, noting that three separate counts confirmed that Biden defeated Mr. Trump in the state. The results in Georgia were at the center of Mr. Trump’s efforts to overturn the election, and Fulton County, which includes Atlanta, is a key Democratic stronghold.
The affidavit said the current investigation originated from a referral sent by Kurt Olsen, whom the FBI describes as a “Presidentially appointed Director of Election Security and Integrity.” In 2020, Olsen was an attorney who worked with Texas Attorney General Ken Paxton to urge the Supreme Court to overturn the election results.
The Justice Department revealed more details about the origins of its criminal investigation in a May 1 court filing, after Boulee partially granted a motion by Fulton County officials to compel further information from the Justice Department.
The government told the court that Olsen formally referred the investigation to the FBI “no later than” Jan. 5, the FBI opened an “assessment” the next day and an FBI official in Atlanta approved a full investigation about a week later. An investigative summary was converted into a search warrant affidavit beginning on Jan. 22.
Lowell said at the March hearing that one of the witnesses cited by the government in the affidavit has a criminal record. He also brought up two incidents of court sanctions against Olsen and argued about half of the witnesses would be categorized as “election deniers.”
In 2022, Olsen was subpoenaed by the House Jan. 6 Committee, which was investigating the aftermath of the 2020 election and the Jan. 6, 2021, attack on the U.S. Capitol. The subpoena alleged that Olsen “contacted various high-level officials at the Department of Justice” at the president’s direction to discuss filing challenges to the election results. The committee said Olsen had multiple phone calls with Mr. Trump on Jan. 6, 2021.
Separately, earlier this month Fulton County Board of Registration and Elections officials asked a federal judge in Georgia to quash a grand jury subpoena from the Justice Department that seeks information on thousands of people who helped run the 2020 election in the county.
The subpoena, issued in April, was issued by federal prosecutors in the Middle District of North Carolina. It seeks personal information — including names, addresses and phone numbers — for election workers and volunteers who worked the 2020 election in the county, with jobs ranging from people who drove the voting units to election volunteers and ballot reviewers.
