On Tuesday afternoon, the FBI finally released a court-ordered affidavit showing the basis for its January raid seizing nearly 700 boxes of ballots and voting records from the 2020 election in Fulton County, Georgia. A judge signed off on the raid after the FBI alleged “evidence of a commission of a criminal offense” relating to the 2020 election.
But what the unsealed affidavit actually revealed was a laundry list of debunked and recycled claims about the 2020 election peddled for years by election deniers that have been rejected repeatedly in court and by election officials. Georgia’s Republican Secretary of State Brad Raffensperger called the claims “baseless and repackaged.”
The affidavit immediately began with a red flag: the declaration submitted to the court by FBI Special Agent Hugh Raymond Evans said that the bureau’s “criminal investigation originated from a referral sent by Kurt Olsen,” a temporary White House employee tasked with investigating the 2020 election results. Olsen is a prominent election denier who played a leading role in the 2020 “Stop the Steal” movement, lobbying the Department of Justice to file a lawsuit with the Supreme Court attempting to overturn the election (Texas eventually filed a lawsuit that was unanimously rejected) and speaking to Trump multiple times on January 6, 2021. He was subsequently sanctioned by a federal court for making “false, misleading and unsupported factual assertions” while representing Arizona gubernatorial candidate Kari Lake in her unsuccessful attempt to challenge the results of the 2022 election.
Evidence provided by Clay Parikh, another election denier who testified on behalf of Lake in 2022, is also prominently cited in the affidavit.
Beyond that, there wasn’t much new or surprising, other than the fact that a state judge signed off on the raid. In order to obtain a search warrant, a law enforcement agency has to establish probable cause: a reasonable belief, going beyond suspicion, that a crime was committed. But the run-of-the-mill procedural errors and claims that the affidavit focuses on have already been investigated and disproven. Moreover, it omits relevant information illustrating the election results were not fraudulent. These crucial omissions are at odds with numerous federal court rulings that establish the standards for probable cause.
“In drafting a search warrant affidavit, the Fourth Amendment requires the inclusion of facts that would negate probable cause, if they exist,” Orin Kerr, a professor at Stanford Law School, posted on X. “The government can’t pick facts that, if true, could support a finding a probable cause, but omit the facts that cancel that.”
The affidavit additionally provided no evidence, or even allegations, of foreign interference in elections, which raised further questions about why Director of National Intelligence Tulsi Gabbard was present at the raid—when she has no authority over domestic law enforcement operations. US Sens. Alex Padilla (D-Calif.), the ranking Democrat on the Senate Committee on Rules and Administration, and Mark Warner (D-Va.), vice chairman of the Senate Intelligence Committee, called on Gabbard to immediately brief senators “in light of recent unprecedented and deeply concerning election-related actions taken by ODNI under your leadership.”
Thus, what’s in—and not in—the document gives further credence to what election experts have long warned: the Trump administration is purposely recycling thoroughly debunked lies about the 2020 election in an effort to “take over” the handling of the midterm elections.
“Their intentions are clear,” Lauren Groh-Wargo, CEO of the national voting rights organization Fair Fight Action, said on a press call Tuesday evening. “They want to dramatically remake our elections to curtail who is able to vote and whose votes are counted.”
Among the examples the FBI provides for probable cause, the agency points out that Fulton County admitted it “does not have scanned images of all the 528,777 ballots counted during the Original Count or the 527,925 ballots counted during the Recount.”
But Georgia law did not require counties to retain the scanned images of ballots at the time. The GOP-led state legislature added that requirement months later, in March 2021.
Another claim regurgitated by the FBI centers around the finding that some ballots were scanned multiple times in Georgia’s 2020 machine recount. After an independent investigation, Fulton County officials acknowledged that some ballots may have been scanned multiple times—though that does not mean the ballots were counted multiple times. (Ballots are sometimes rescanned if there’s an error in the tabulation process, in which case the initial scan of the ballot is deleted from the vote count.) Critically, the investigation that uncovered the repeat scans found no evidence of fraud. And regardless, the initial count, the subsequent hand-counted audit, and the computer-tabulated recount all showed that Joe Biden won the state by roughly the same margin: 11,779 votes.
“If these deficiencies were the result of intentional action, it would be a violation of federal law regardless of whether the failure to retain records or the deprivation of a fair tabulation of a vote was outcome determinative for any particular election or race,” the FBI affidavit says of its assertions. But that’s a pretty big “if,” especially because the affidavit offers no evidence to support it.
Fulton County argued in federal court that the seized ballots and voting records should be returned to their jurisdiction, writing that “there is significant evidence in the public record suggesting that these same debunked theories supported the federal warrant.” Following its release, Fulton County Board of Commissioners Chair Robb Pitts said the affidavit was based on “recycled rumors, lies, untruths and unproven conspiracy theories.”
The lack of evidence of criminal wrongdoing by Fulton County could ultimately persuade a federal judge to rule in its favor. But much of the damage has already been done.
Trump will continue to weaponize false claims about the 2020 election as a pretext for interfering in the upcoming midterms. And his allies on the state election board in Georgia could use the seizure of the ballots to push for taking over elections in Fulton County, which would allow them to dramatically limit access to the ballot and challenge election outcomes in the state’s largest county.
This post has been syndicated from Mother Jones, where it was published under this address.