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ATLANTA (AP) — Attorneys for Georgia’s Fulton County and President Donald Trump’s administration squared off in court Friday over the county’s demand that the FBI return seized ballots and other materials from the 2020 election.
Abbe Lowell, representing Fulton County, repeatedly called the January seizure “unusual” because it involved an old election and allegations that have already been investigated in the years since Donald Trump, a Republican, lost the county and the state to Joe Biden, a Democrat.
Lowell suggested that the Trump administration seized the materials because it grew impatient with the pace of litigation the Justice Department filed to obtain them last year. He said the affidavit used to obtain a search warrant failed to allege any specific crime or accuse anyone of intentionally committing any wrongdoing.
“There’s nothing to support that there’s an ongoing investigation that matters,” Lowell told U.S. District Judge J.P. Boulee, arguing that the federal government should return the seized documents.
A. Tysen Duva, the assistant attorney general in charge of the criminal division, dismissed disputes over the grounds for the seizure as “posturing.”
“Is there a predicate reason to perform this investigation? Of course there is,” he said. He argued that the fact that other investigations had raised concerns, even if they hadn’t found evidence of intentional wrongdoing.
“Just because all of these other entities say one thing doesn’t mean the FBI can’t investigate,” he said.
Lawyers for the federal government said the Justice Department had already provided Fulton County with digital copies of everything taken and needs to retain physical copies to carry out its own investigation.
Trump’s actions alarm Democrats and election officials
The Jan. 28 seizure from a warehouse near Atlanta targeted the elections hub in Georgia’s most populous county, which is heavily Democratic and includes most of Atlanta. Fulton County has been at the center of unfounded claims by Trump and his allies that widespread election fraud cost him reelection.
The FBI’s move was among several actions by the Trump administration that have alarmed Democrats and many election officials who are concerned it’s using law enforcement to pursue the president’s personal grievances and is planning ways to interfere in this year’s midterm elections. The FBI also used a subpoena earlier this month to obtain records related to an audit of the 2020 presidential election in Maricopa County in Arizona, another battleground state Trump lost that year.
At the same time, the Justice Department is fighting numerous states in court for access to voter data that includes sensitive personal information. Election officials, including some Republicans, have said handing over the information would violate state and federal privacy laws.
Justice Department says it’s investigating 2020 ‘irregularities’
Lawyers for Fulton County argued that the seizure of its documents demonstrates “callous disregard” for the Fourth Amendment protection against unreasonable search and seizure.
Justice Department attorneys argued that preparing a detailed affidavit and presenting it to a judge shows they clearly didn’t show “callous disregard” for those constitutional rights. The county is just upset that the documents were taken, Duva said.
The Justice Department has said it is investigating “irregularities that occurred during the 2020 presidential election in the County” and identified two laws that might have been violated. One requires election records to be maintained for 22 months, while the other prohibits procuring, casting or tabulating false, fictitious or fraudulent ballots.
A court filing said the FBI is looking into 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 potential irregularities concerning tabulator tapes from the scanners used to count ballots.
Fulton County’s lawyers argued that the “deficiencies” or “defects” in the county’s handling of the 2020 election cited in the affidavit are the kinds of human errors that commonly occur without any intentional wrongdoing and cannot establish probable cause.
Election tech expert explains alleged problems
To support their claims, Fulton County officials called Ryan Macias, an election technology and security expert who advised the county during the 2020 election, to testify. He said the affidavit contains many false or misleading statements and isn’t grounded in reality. He offered explanations for the alleged “deficiencies.”
Duva questioned Macias about his knowledge of criminal investigation procedures, eliciting admissions that it was not his area of expertise.
Investigations by the Georgia secretary of state and independent reviews contradict the core allegations of the affidavit, which relies on witnesses who lack credibility and have biases that weren’t disclosed to the magistrate judge, Lowell argued.
Georgia’s votes in the 2020 presidential race were counted three times, including once by hand, and each count affirmed Biden’s win.
Duva rejected the idea that the FBI agent who wrote the affidavit misled the judge, noting that the affidavit included investigative findings that disputed some of what witnesses had said. He also asserted that a lapse of the statute of limitations on the potential crimes does not negate probable cause.
The Justice Department also noted that a federal magistrate judge reviewed the FBI affidavit and signed off on the search warrant. Fulton County sought to have the FBI agent who wrote the affidavit testify at Friday’s hearing, but the Justice Department objected and the judge sided with the federal government.
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This story has been updated to correct the last name of the Justice Department attorney. It is Duva, not Duma.
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Associated Press writer Nicholas Riccardi in Denver contributed to this report.
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