Left: Donald Trump exits his vehicle to walk over to speak with reporters before he boards his plane at Ronald Reagan Washington National Airport, Thursday, Aug. 3, 2023, in Arlington, Va., after facing a judge on federal conspiracy charges that allege he conspired to subvert the 2020 election (AP Photo/Alex Brandon). Right: An FBI employee stands inside the Fulton County Election HUB as the FBI takes Fulton County 2020 Election ballots, Wednesday, Jan. 28, 2026, in Union City, Ga., near Atlanta (AP Photo/Mike Stewart).
No part of the Trump administration FBI's affidavit underlying the search warrant of the Election Hub in Fulton County, Georgia, came close to establishing probable cause, so all seized 2020 ballots should be immediately returned, attorneys for the state told a federal judge Tuesday.
In an updated version of the original request for a return of seized property, and with the benefit of reading the affidavit that feds submitted to a magistrate judge to sign off on the search, Fulton County essentially counted the ways that Trump administration fell "woefully short" of actually establishing probable cause that a crime was committed.
Even before U.S. District Judge J.P. Boulee unsealed the affidavit, Fulton County suspected an "abuse of the criminal process" on the part of the Trump administration by allegedly recycling years-old 2020 election conspiracy theories, putting those in the affidavit, and omitting material facts when it came time for U.S. Magistrate Judge Catherine Salinas to review the application.
The county anticipated that the government would be relying on "baseless" and "unfounded" claims of systemic, election-altering voter fraud in 2020, adding it was "difficult to imagine how the affidavit supports probable cause[.]"
The county now says the affidavit only tended to confirm what lead plaintiff Fulton County Board of Commissioners Chairman Robb Pitts said from the start. The Trump administration's seizure of election ballots, ballot images, tabulators, and voter rolls from a warehouse was a "callous" constitutional violation that plainly seeks to rewrite the story of President Donald Trump's loss to Joe Biden in 2020, the amended motion said.
Calling the warrant "entirely devoid of probable cause" and the seizure a "flagrant constitutional violation," Fulton County said the Trump administration did "not identify a single piece of evidence from the FBI's investigation establishing probable cause to believe that anyone intentionally, let alone willfully, violated" criminal statutes.
"Instead of relying on the Affiant's personal knowledge, it lists a smorgasbord of witness speculation, beliefs, and theories to identify certain categories of 'deficiencies or defects,'" the filing said. "But the Affidavit cannot bootstrap speculative hearsay into probable cause."
And the witness speculation Fulton County referred to is hardly new.
Law&Crime reported one week ago that the underlying investigation traces back to Kurt Olsen, a 2020 election denier turned Director of Election Security and Integrity who spoke with Trump several times on Jan. 6, 2021, and who tried to convince then-acting attorney general Jeffrey Rosen to back litigation specifically aimed at overturning Biden's victory at the U.S. Supreme Court.
That information and other "critical" context, like being sanctioned for his work on behalf of Kari Lake in her failed 2022 election challenges, was not made clear in the affidavit, Fulton County said.
"The Affidavit admits that the entire 'criminal investigation originated from a referral sent by Kurt Olsen,' but it conceals the fact that multiple courts have sanctioned Olsen for his unsubstantiated, speculative claims about elections," the filing said, referring to Lake's suit against Katie Hobbs.
The affidavit also did not "reveal" that the Trump administration's witnesses are "hardly a collection of unbiased or credible experts."
"[T]he Affidavit relies upon representations made by 'Witness 7,' whom the Atlanta Journal Constitution has identified as Kevin Moncla. But the Affidavit fails to disclose that Mr. Moncla was reportedly referred to the FBI in 2023 for sending threatening emails to members of the SEB and an aide to Secretary of State Brad Raffensperger," the filing continued. "Nor does the affidavit reveal that it relies on witnesses who, among other things, participated in Kari Lake's failed efforts to contest the 2022 gubernatorial election in Arizona, and reportedly run a Telegram channel devoted to election conspiracies."
Even leaving aside questions about the statute of limitations and whether there is a prosecutable crime, which Fulton County has said there isn't, the affidavit's reliance on "ifs" and a "possible cause" standard speaks for itself, documents concluded.
"It is woefully deficient for an affiant to say if I develop additional evidence at some later point in time, the seized property would potentially be evidence of a crime," Fulton County summarized (emphasis in original). "Probable cause requires more: a reasonable likelihood that a crime did, in fact, occur."
Colin Kalmbacher contributed to this report.