On Tuesday, Fulton County argued that the U.S. Department of Justice’s affidavit used to justify FBI agents seizing troves of 2020 election records from the county omitted facts and relied on “possible” — rather than probable — cause.
In a motion filed Tuesday, the county argued the ballot seizure violated the Fourth Amendment, saying federal authorities admitted the seizure will find “evidence of a crime only if certain hypotheticals are true.”
“Instead of alleging probable cause to believe a crime has been committed, the Affidavit does nothing more than describe the types of human errors that its own sources confirm occur in almost every election — without any intentional wrongdoing whatsoever,” the attorneys argued in the filing.
Fulton’s legal action in the U.S. District Court in Atlanta is the latest in its effort to retrieve its more than 5-year-old election records seized by the Trump administration Jan. 28 as part of its criminal investigation into Fulton’s 2020 election.
Federal authorities cited two federal statutes. One law requires the county to hold on to election records for at least 22 months after a federal election. Another law prohibits coercion in the voting process and knowingly tabulating fraudulent ballots.
The county contended the two statutes cited in the search warrant for both alleged offenses are outside the five-year statute of limitations and the FBI executed the ballot seizure to “thwart pending judicial proceedings.”
“The last relevant events concern a recount that ended in December 2020,” the county argued.
Fulton excoriated the federal government for leaving out facts about previous state investigations into the county’s 2020 election and key witnesses cited in the affidavit.
The county argued the affidavit omitted details about Kurt Olsen, Trump’s hand-picked director of elections security and integrity, who referred the criminal investigation to DOJ.
Olsen was sanctioned in federal court for making “false, misleading and unsupported factual assertions” in support of Republican Kari Lake’s failed legal effort to overturn her 2022 loss in the Arizona governor’s race, the filing said.
He also tried to help Trump in his efforts to overturn the 2020 election, and he spoke with Trump several times during the Jan. 6, 2021, insurrection. In 2024, the lawyer represented the DeKalb Republican Party in a lawsuit challenging the state’s touch screen voting system. A Fulton Superior Court judge tossed out the case.
The county pointed to another witness in the affidavit, Kevin Moncla, a conservative activist who told The Atlanta Journal-Constitution he provided a 263-page report alleging fraud in Fulton’s 2020 conduct to the Justice Department and Olsen weeks before the raid.
“This is hardly a collection of unbiased or credible experts,” the county’s attorneys wrote.
Many of its claims included in the report have been dismissed by the State Election Board after secretary of state investigators investigated election complaints. The county’s 2020 errors are well documented, but state investigators haven’t found evidence of malfeasance.
“Despite years of investigations of the 2020 election, the Affidavit does not identify facts that establish probable cause that anyone committed a crime,” Fulton contended.
An evidentiary hearing in the case is scheduled for later this month.
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