It Looks Like The FBI Straight Up Lied To A Judge To Get Permission To Seize Georgia Voting Records

Legal Issues

from the stacking-the-midterm-deck dept

Earlier this month, the FBI decided it was going to help Donald Trump steal back the election he’s claimed for half-a-decade was stolen from him. The state whose Secretary of State was asked directly by the outgoing president in January 2021 to “find 11,780 votes” was raided by Trump 2.0, who still somehow thinks he can win the election he lost back in 2020.

It’s not just revenge Trump is seeking. He’s also hoping to find anything that will allow him to cast doubt on midterm election results now that it seems entirely possible the GOP might lose its majority in the legislature.

The FBI walked off with tons of stuff after its raid of the Fulton County election hub in Georgia. The raid — which was attended by the current DNI Tulsi Gabbard for no apparent reason — saw the Trump government seize as many 2020 ballots and voter records as possible. The stated reason for this raid was to collect evidence related to two alleged crimes: not retaining election records long enough and attempts to “intimidate voters or procure false votes/false voter registration.”

One of several glaring problems with this raid is the fact that some of the criminal acts alleged have already surpassed the five-year statute of limitations. The rest of the glaring problems are far less subtle. Like Trump using the FBI and DOJ to engage in vindictive prosecution. And the FBI appearing to have deliberately mislead the magistrate judge to get this search warrant approved.

This declaration [PDF] by Ryan Macias, a project manager for the voting system used in Fulton County who also served as the Acting Director of the Voting System Program during the 2020 election, points out multiple flaws in the FBI’s warrant affidavit — all of which it would be safe to assume were deliberate “errors.”

The Affidavit asserts that there were five “deficiencies or defects with the November 3, 2020, election and tabulation of the votes thereof.” The Affidavit concludes that “[i]f these deficiencies were the result of intentional action, it would be a violation of” Title 52 U.S.C. §§ 20511 (Criminal Penalties) and 20701 (Retention and Preservation of Records of Elections).

In all five areas identified by Special Agent Evans’ Affidavit, there are a multitude of false or misleading statements and omissions. In fact, there are, as set forth below, over a dozen omissions of critical parts of the reports and related materials that I identified in paragraph 4 above. This is in addition to the absence of any recognition that much of what the Affidavit references as concerning are widely known as benign and common election practices. As noted there, all of those materials are publicly available and could have been referenced by Special Agent Evans. Even when Special Agent Evans cites to one of these sources, he repeatedly omits crucial facts and findings inconsistent with his characterizations. Once the statements and omissions in the Affidavit are corrected and based on my experience administering elections in accordance with the statutes cited in the Affidavit, the Affidavit loses any basis in reality.

The whole thing needs to be read, but here are just a couple of the things we’re going to generously call “errors,” even though they’re really deliberate omissions. The criminal allegations allege ballot images weren’t retained in violation of the law. But, as this declaration points out, the retention of images wasn’t mandated by law in Georgia until 2021, which would be after the 2020 election. If images weren’t retained, it was likely because election staffers obviously didn’t think it was necessary to do so.

Second, the affidavit claims something is shady about the audits performed by county officials, insinuating that this somehow resulted in votes mysteriously swinging the state in Biden’s direction. This declaration states the actual truth: “risk limiting audits” only aid in determining whether or not a recount might be warranted. Only official counts and recounts can actually alter voting results.

Fulton County’s challenge [PDF] of the search contains even more information that indicates the FBI’s search warrant application was crafted to basically trick a judge into authorizing an illegal search (all emphasis in the original):

First, the Fourth Amendment demands “probable cause”—not “possible cause.” The Affidavit fails that constitutional requirement. Despite years of investigations of the 2020 election, the Affidavit does not identify facts that establish probable cause that anyone committed a crime. Instead, FBI Special Agent Evans (the “Affiant”) all but admits that the seizure will yield evidence of a crime only if certain hypotheticals are true. See, e.g., Aff. ¶ 10 (“If these deficiencies were the result of intentional action, it would be a violation of federal law[.]”); ¶ 85 (“If these deficiencies were the result of intentional action, the election records . . . are evidence of violations[.]”). Unsupported by probable cause and dependent on unsubstantiated hypotheticals, Respondent’s seizure violated the Fourth Amendment.

There’s more (emphasis mine):

Second, 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. Mislabeling an expected margin of error as “deficiencies” or “defects” cannot establish probable cause, let alone for a seizure of this magnitude.

Third, the Affidavit omits numerous material facts—including from the very reports and publicly-disclosed investigations that the Affiant cites—that confirm the alleged conduct was previously investigated and found to be unintentional. Moreover, the Affidavit not only fails to allege that any particular witness is reliable or credible; it omits discrediting information about those witnesses that was obviously available to the Affiant. These omissions are serious. The ex parte warrant process would be rendered a nullity if the government were permitted to hide material and probative facts that refute probable cause from a magistrate judge and nevertheless retain the fruits of its misconduct.

It then goes on to note that even if the affidavit wasn’t more about what was deliberately left out of it, rather than what Kash Patel’s FBI decided to include, it would still suck, constitutionally-speaking:

Fourth, even if the Affidavit established probable cause, the seizure of original election materials would be unreasonable and in callous disregard of the Fourth Amendment because (1) the statutes of limitation have lapsed on the only crimes under investigation; (2) the warrant violates Georgia’s state sovereignty by effectively enjoining a pending state court proceeding and preventing Georgia from performing its constitutionally-mandated role in administering its elections; and (3) the Respondent improperly used the criminal warrant process to circumvent a pending civil lawsuit in which it requested the same records.

That last sentence is a particularly spicy zinger. It shows the administration will do anything to rack up a few rabble-rousing “victories,” no matter how fleeting or Pyrrhic. This is a fully-cooked collection of gassed-up bigots and conspiracy theorists (or both!) who have managed to turn their extremely online “own the libs” bullshit into a 24/7 attack on the Constitution, the system of checks and balances, and anything else that stands in the way of their autocratic wet dreams.

What’s standing between us and further destruction of the stuff that makes America great is a court system that doesn’t actually seem to know what to do when it has to deal with an entire administration that refuses to play by the rules that have held this nation together for more than two centuries. It’s time for the courts to dig deep and start breaking the glass on every judicial tool labeled “IN CASE OF EMERGENCY.” Giving any of these fuckers the benefit of a doubt only allows them to dig in deeper.

Filed Under: 2020 election, election, fbi, fulton county, georgia, tulsi gabbard, voting records