In Atlanta, attorneys for Fulton County and President Donald Trump’s administration squared off Friday in federal court over the county’s demand that the FBI return seized ballots and other materials from the 2020 election.
Fulton County’s lawyer, Abbe Lowell, repeatedly told the judge that the January seizure was “unusual,” saying it targeted an old election and allegations that had already been investigated since Trump, a Republican, lost Fulton County and Georgia to Joe Biden, a Democrat.
Lowell argued the Trump administration’s action was driven by impatience with the pace of the Justice Department’s litigation to obtain the materials. He said the affidavit used to obtain a search warrant did not allege a specific crime or accuse anyone of intentionally committing wrongdoing, adding that there was not a continuing investigation supported by the warrant’s assertions.
“There’s nothing to support that there’s an ongoing investigation that matters,” Lowell told U.S. District Judge J.P. Boulee as Fulton County sought the return of the seized documents.
Assistant attorney general A. Tysen Duva, who leads the DOJ’s criminal division, responded that the dispute over the seizure’s grounds amounted to “posturing.” He said investigators have a “predicate reason to perform this investigation,” and he argued that the government can pursue inquiries even if other prior reviews did not find evidence of intentional wrongdoing.
Duva’s argument also drew a line between what the Justice Department said it needed for a criminal investigation and what Fulton County said it had already received. Federal lawyers told the court that the Justice Department had already given Fulton County digital copies of everything taken and that it needed physical records to carry out its own investigation.
The case has come amid concerns from Democrats and election officials that the Trump administration is using law enforcement activity to pursue the president’s personal grievances. The FBI’s move in Georgia was described in the hearing as one of several steps by the Trump administration that drew such alarm, including using a subpoena earlier in the month to obtain records related to an audit of the 2020 presidential election in Maricopa County, Arizona.
At the center of Friday’s arguments was what the Justice Department said it is still investigating from the 2020 vote. Federal prosecutors told the court that the Justice Department is investigating “irregularities that occurred during the 2020 presidential election in the County” and cited two laws that might have been violated: one requiring election records to be maintained for 22 months, and another that prohibits procuring, casting or tabulating false, fictitious or fraudulent ballots.
A court filing described the FBI’s focus on whether Fulton County properly retained ballot images, whether some ballots were scanned and counted multiple times, whether unfolded, unmailed ballots were counted as mail-in absentee ballots, and whether there were irregularities involving tabulator tapes from the scanners used to count ballots.
Fulton County countered that any alleged “deficiencies” or “defects” described in the affidavit reflected kinds of human errors that can occur without intentional wrongdoing and could not establish probable cause. The county’s lawyers also argued that the affidavit relied on witnesses with credibility issues and undisclosed biases, and that investigations by Georgia’s secretary of state and independent reviews had contradicted the affidavit’s core allegations.
To support those claims, Fulton County called Ryan Macias, an election technology and security expert who advised the county during the 2020 election, to testify that the affidavit contained false or misleading statements and was not grounded in reality. In testimony described in court, Duva questioned Macias about his knowledge of criminal investigation procedures, prompting admissions that the subject was not his area of expertise.
Duva also rejected the idea that the FBI agent who prepared the affidavit misled the judge, saying the affidavit included investigative findings that disputed some of what witnesses had said. He said the potential that a statute of limitations had run on certain crimes did not eliminate probable cause, and he noted that a federal magistrate judge reviewed the FBI affidavit and signed off on the search warrant.
Fulton County had asked that the FBI agent who wrote the affidavit testify at Friday’s hearing, but DOJ attorneys objected and the judge sided with the government, according to reporting on the proceedings.