Trump Justice Department’s probe of the 2020 election gets first public test in court

By Tierney Sneed, Jason Morris, CNN

(CNN) — A lawyer for Fulton County warned a federal judge Friday that if he did not scrutinize the criminal search warrant the Justice Department used to obtain 2020 Atlanta-area election records, it could embolden the Trump administration to seize ballots in the midst of an election in the future.

“Think of the ramifications in an election year,” Abbe Lowell, a private attorney representing the county, told Georgia Northern District Judge JP Boulee, who is considering a request that the DOJ be ordered to return the seized election materials.

Boulee did not announce at the end of the five hour-plus hearing how he’d rule on the dispute. He signaled sympathy to the Justice Department’s arguments that its criminal investigations were entitled to broad latitude, but also said that he was bothered by some aspects of the search warrant.

Lowell argued Friday the FBI affidavit filed with the search warrant did not include evidence of intentional wrongdoing, noting that it didn’t even specify a target in the federal criminal probe. He said its allegations — which have been investigated and largely debunked — were the type of administrative anomalies that are the norm in an election.

The Justice Department is facing the first public court test of its effort to investigate President Donald Trump’s 2020 election defeat, as it fends off a lawsuit seeking a return of the 2020 ballots that were seized in an unprecedented move earlier this year.

The county put on the stand a longtime election expert, Ryan Macias, who testified the affidavit used to obtain the warrant included “incoherent,” “contradictory,” and inaccurate descriptions of how the election was carried out.

The Justice Department argued that the county had not met the high bar required for ordering the seized materials be returned. The county must show that the search amounted to a “callous disregard” of the local officials’ constitutional rights.

Tysen Duva, who heads the Justice Department’s criminal division, told the judge that if he believed the FBI agent could have done a better job writing the affidavit, that was not sufficient for ruling for Fulton County.

“This is not grading a paper,” Duva said.

The Justice Department has already provided the county a digital record of what it seized. Boulee had several questions for Lowell that suggested he was skeptical of the county’s arguments for why it needed the physical copies back.

However, Boulee also was focused on an argument Lowell made about the timing of the criminal search warrant being sought.

Lowell stressed that the Justice Department already had a civil case pending seeking the same records, and there was a state court case ongoing as well concerning a Georgia State Board of Election subpoena for the materials.

In their back and forth, they discussed a hypothetical in which Justice Department attorneys at a meeting were complaining about delays in the civil case, and an attorney offered the idea of pursing a search warrant instead. Lowell conceded he did not have proof such a conversation took place.

Boulee later told DOJ attorney Michael Weisbuch such a scenario would be “fishy,” but the Justice Department lawyer pushed back that something being “fishy” does not amount to callous disregard.

Both Weisbuch and another DOJ attorney arguing Friday pushed back on that narrative, saying they were not “aware” of such a meeting.

Weisbuch told the judge that it seemed the county didn’t like “the vibes of what’s happening” with the investigation — but he argued that did not amount to a constitutional claim.

However, Boulee said that if his hypothetical was true and that a search warrant was pursued as an idea for getting around delays in the civil lawsuit, it would be a “good argument” in favor of the county’s request.

The litigation has already revealed the administration’s probe is being driven by Trump allies with a history of putting forward debunked theories alleging fraud in the 2020 election. The presence of Director of National Intelligence Tulsi Gabbard at the January ballot seizure further has raised questions about the scope of the investigation, as her office has no authority over domestic election administration and the FBI’s warrant application for the search did not make allegations of foreign meddling.

County clerk present at search testifies

The county clerk who had custody of the election records at the time of the search briefly testified Friday.

Ché Alexander, clerk of the Superior and Magistrate Courts of Fulton County, said it was “chaos” when the FBI executed the search warrant.

When agents arrived, Alexander testified, she asked if they would fill out a chain of custody form maintained by the county so they could notate “box by box” what they were taking.

“They said ‘absolutely not,’” Alexander testified.

In cross-examination, the Justice Department sought to cast doubt on her testimony that she needed the ballots back by playing video of a hearing in a separate court case in which the county indicated it no longer wanted be on the hook for maintaining the records. The reason given then was that the county was running out of space for storing records for upcoming elections. Alexander noted that the county now has a larger storage facility.

In its questioning of Macias, the election expert, the Justice Department highlighted that he could not say what was in the FBI agent’s mind and whether they intentionally lied in the search warrant application.

Duva focused on the affidavit’s reference to reports that concluded no intentional wrongdoing in the administration of the election, which he suggested showed the FBI agent wasn’t trying “hide the ball” from the magistrate who approved the search.

Macias countered that the FBI should have provided a fuller picture of how those reports had debunked the allegations used to justify warrant, but the Justice Department’s arguments appeared to have resonated with the judge.

“An agent has to pick and choose” what to put in an affidavit, Boulee told Lowell. “How far does the affidavit have to go” to include information contrary to its allegations, he said.

Still, the judge said it “bothers” him that one allegation the FBI said it was investigating lacked any of the relevant pushback in the affidavit.

He also questioned the Justice Department about how the statute of limitations had seemingly expired on the crimes it said it was investigating.

Scrutinizing the DOJ’s justification of the seizure

The warrant was sought by a US attorney in Missouri, Tom Albus, who is also serving as a “special attorney” in the Justice Department to investigate election issues nationwide. According to the warrant affidavit, the probe was launched because of a referral of Kurt Olsen, a lawyer who was involved in Trump’s schemes to overturn the 2020 election and who is now the White House’s director of election security and integrity.

The Justice Department says it is investigating supposed discrepancies in the county’s records of scanned ballot images, alleged “irregularities” in the tabulator tapes created by its election machines, and claims that some absentee ballots were suspect because they didn’t have fold marks. The Justice Department alleges possible violations of federal statutes that require election officials to preserve voting records for 22 months after an election and that prohibit tampering with the vote.

Among the witnesses the FBI cited in its affidavit are members of the State Election Board who have relentlessly been pursuing theories that the 2020 count in Georgia was flawed. The allegations surfaced in the warrant have been previously aired and largely debunked.

When can a court second-guess an FBI search warrant?

The Justice Department said in filings that if the judge were to side with Fulton County’s request, it would “open the floodgates to parties who” would use similar challenges to search warrants “as a way to get a sneak peek at ongoing criminal investigations.”

The Trump administration is touting the president’s appeals court loss in his efforts to challenge the FBI’s search of Mar-a-Lago in 2023 to argue that the court should not meddle with the criminal probe into the 2020 election now.

The lawyers who represented the defendants in the prosecution that grew out of that search now occupy top roles at the Justice Department. Trump’s personal lawyer Todd Blanche is now the deputy attorney general, while the lawyer who represented a Trump employee charged in that case, Stanley Woodward, serves at the department’s no. 3 lawyer and was the top signatory on the DOJ’s legal filings in the current dispute.

Fulton County says that the DOJ is wrong to wield the appeals court precedent in that case — which was issued by the 11th US Circuit Court of Appeals, the appeals court that oversees courts in Florida and Georgia. The local officials argue that they’re using a different legal framework — the callous disregard framework, set forth by a legal procedure known as Rule 41(g) — than Trump did when he sued over special counsel Jack Smith’s investigation.

This article has been updated with additional developments.

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