Matt BlazeFeb 10

RE: https://mastodon.social/@lawfare/116048314109181139

Lawfare has the unsealed affidavits for the Fulton County elections office search warrants, which are online at the link.

I’ve so far only skimmed, but a couple initial impressions.

-Lots of mentions of small discrepancies, but not much that appears to establish PC of an actual crime. Some of the alleged discrepancies were previously refuted by GA officials.

-Nothing mentioned (such as an indictment) that would stop the 5 year statute of limitations clock; all the acts are > 5 years ago.

Show threadMatt BlazeFeb 10

Again, I’ve not yet read the docs carefully. But it’s worth noting that mere discrepancies aren’t crimes, and small errors and mishaps are normal and expected in something as large scale as this. Also, these seem to be related to the statewide machine recount, which was a new process partly invented on the fly, intended to validate the initial results.

And the statute of limitations problem is significant. It may have been addressed in some other filing or hearing, but it’s not explained here.

Show threadMatt BlazeFeb 10
I’m NOT saying there’s nothing to any of this, only that the affidavits don’t themselves suggest that there’s all that much here.
Show threadMatt Blaze

Much is made of the presence of "pristine" absentee ballots, which is the term they use for ballots that lacked creases from being folded and sealed in an envelope. The assert that there's no innocent explanation for this, since all absentee ballots have to arrive in an envelope.

But there *is* an explanation. UOCAVA ballots, a generic ballot form used by some overseas/military voters, aren't machine readable. They have to be transcribed onto a regular ballot form for tabulation.

Feb 11 at 1:11amWeb
Show threadMatt BlazeFeb 11
There'd be no reason to expect transcribed UOCAVA ballots to have creases, since they're created in the election office after the mailed ballot from the voter is opened.
Show threadMatt BlazeFeb 11
The agent who swore out the affidavit appears to be relatively junior (5 years out of the academy), with no apparent specific cybersecurity or elections speciality background (he was a lawyer before joining the FBI). He appears to have taken all the witness's suspicions at face value, with little or no discussion of confounding explanations or discussions with election experts (except for the discussion of tabulator tapes with Parikh).
Show threadMatt BlazeFeb 11
If these affidavits constitute the entirety of the probable cause presented to the court, I'm surprised that the judge granted the warrant.
Show threadMatt BlazeFeb 11
In particular, as the affidavit correctly notes, mere discrepancies or procedural mistakes do not by themselves constitute a crime. The crimes require deliberate malicious conduct. But the affidavit presents virtually no evidence that any conduct that led to the discrepancies was deliberate, or even who was responsible for it.
Show threadMatt BlazeFeb 11
The standard for getting a search warrant isn't a complete case ready for trial or proof beyond a reasonable doubt. It's "probable cause" to believe that the search will yield evidence of a crime. But here, they don't even lay out, to my eyes, probable cause to believe there even was a crime in the first place.
Show threadMatt BlazeFeb 11
Usually in warrant affidavits like this, you'll see lines like "Based on my training and experience, <some evidence> is indicative of <criminal conduct>. There's NONE of that here. Just quotes from witnesses who said they were suspicious, generally for unspecified reasons and without analysis.
Show threadMatt BlazeFeb 11

You might think, "well if there are discrepancies, shouldn't they be investigated?"

The 2020 election in GA HAS been investigated. It's one of the most closely scrutinized elections in US history, and has been the subject of an almost endless stream of litigation and analysis. This case is not the only opportunity to find out about the GA election.

Also, this is a federal criminal investigation, a very powerful tool with the capacity to wreck people's lives. Not something to do frivolously.

Show threadMatt BlazeFeb 11
In short, I'm trying to give every benefit of the doubt to the feds here, but this case seems to be extremely thin and well below what you'd expect to warrant a federal criminal investigation.
Show threadMatt BlazeFeb 12

For l the reasons I noted as well as many others, I don’t expect the case related to the Fulton County search to end with any federal criminal convictions, and I’d be surprised if there were even indictments.

But that’s not the only impact here. The GA state elections board is reportedly using the investigation to move toward taking over the Fulton County elections office, under a provision of GA election law.

Show threadMatt BlazeFeb 12
This would not be a FEDERAL takeover, since the elections would still be operated by the state. But it would alter the political dynamics of Fulton County elections, since the GA state elections board is R controlled, while the locally-elected Fulton County office is D controlled.
Show threadMatt Blaze19h ago

The plot continues to thicken in the Fulton County GA elections search warrant case.

(tl;dr: Earlier this year, the feds got a criminal search warrant to seize an expansive range of documents related to the 2020 election, despite no clear probable cause of a prosecutable crime) https://www.courtlistener.com/docket/72267501/71/pitts-v-united-states/

At a hearing last Friday, the judge asked whether the warrant was an abuse of criminal procedure as an end run in a civil case seeking the same docs.

Fulton Cty's filing: https://www.courtlistener.com/docket/72267501/71/pitts-v-united-states/

Show threadMatt Blaze19h ago

In other words, there were existing state and federal CIVIL cases seeking these documents already in the works. Civil cases move slowly, and the production of the records was not likely to be resolved for a while. In particular, SEARCH WARRANTS are not a thing in civil cases (in which the cops show up and seize evidence). That's only for criminal cases.

In civil cases, there are subpoenas, in which the subject is ordered to produce documents, but can challenge it in court before complying.

Show threadMatt Blaze19h ago
Here, Fulton County is alleging (and the judge seems to be taking seriously) that the federal government opened a sham criminal investigation and obtained a search warrant simply as an end run around the slow process in the civil case, with no actual prosecutable crime at the root. That would be a significant abuse, which the court would likely react strongly to.
Show threadMatt Blaze19h ago
There were some other rulings in the case as well. Fulton County wanted to depose the agent who swore the warrant affidavit, but was denied that on procedural grounds (it's a high burden).
Show threadMatt Blaze19h ago
A reminder: If I report on what's going on in case like this, I'm simply reporting on what's happening. That does not imply I endorse or am defending the particular laws involved, the courts, or the conduct of any party.
Show threadMatt Blaze19h ago

In any case, this is a significant escalation. Fulton started with the basic argument that the warrant shouldn't have been issued (because no credible probable cause was alleged and the statute of limitations had passed on any possible crimes), and that therefore the documents should be returned. In other words, that the magistrate judge erred in issuing the warrant.

Now, they're also effectively alleging actual fraud by the government in seeking the warrant in the first place.

Buy popcorn.

Show threadme_valentijn19h ago
@mattblaze
Yeah, sounds like it could be some substantial misconduct with serious consequences 😲
Show threadRobert Pluim 🇪🇺19h ago
@me_valentijn @mattblaze Consequences for Trump officials ignoring the law, judges, or the constitution? I've yet to see any
Show threadMatt Blaze19h ago

@rpluim @me_valentijn The consequences available to the judge in this case would be to grant the petitioner's motion to have the documents returned, and possibly to refer various lawyers to their bar authorities for disciplinary action if he believes anyone misrepresented facts.

This is how courts work. And the administration has faced consequences like this in quite a few cases in the last year.

Show threadRobert Pluim 🇪🇺19h ago
@mattblaze @me_valentijn Perhaps I should have said "real consequences": fines, jail time, ineligibility, that kind of thing.
Show threadMark Down19h ago

@mattblaze fraud?? In this economy?

/s

Show threadRobert Pluim 🇪🇺19h ago
@mattblaze I was not implying anything about your opinions, I was expressing my surprise at the judge's decision. Warranty void if removed, etc 😃
Show threadRobert Pluim 🇪🇺19h ago
@mattblaze Sorry, there's an allegation the warrant is bullshit, but they're not allowed to question the guy who signed off on it? Isn't dealing with legal stuff a large part of his job?
Show threadMatt Blaze19h ago
@rpluim At this stage of the proceeding, no. If there were a criminal trial, the defendant would likely be able to examine the agent. But this is a case in which they're trying to get the records back, not one in which they're trying to get evidence excluded from a prosecution (which hasn't happened yet).
Show threadchronophage19h ago
@mattblaze kind of surprised they did not use an NSL - less overhead for the government (not to say I endorse the practice), but perhaps I am misunderstanding who can use NSLs. Also given the nature of NSL, we might not know if they did for a long time.
Show threadMatt Blaze19h ago
@chronovore NSLs are less powerful here than search warrants. They are orders to produce information, and you can challenge them in court (like a subpoena). And they have to have a natsec nexus.
Show threadchronophage19h ago
@mattblaze ah, thank you for the context and clarification!
Show threadMatt Blaze19h ago
@chronovore In a search warrant, the government shows up and takes the documents, whether you like it or not. You have to go to a court to get them back (which is what Fulton county is doing here).
Show threadFediThing Feb 11

@mattblaze

Thank you for your analysis 🙏

Would you say the investigation is intended as performative, an attempt to give the impression of wrongdoing even though there's no evidence for it?

Show threadMatt BlazeFeb 11
@FediThing My guess, and this is only a guess, is that it's pretty much that. They seem to be trying to stoke the fires by giving previously debunked claims the legitimacy of a federal criminal case.
Show threadBillFeb 11
@mattblaze I'm not sure the current incarnation of the feds has done anything to earn your benefits, doubtful or otherwise, Matt.
Show threadMatt BlazeFeb 11
@Sempf Nonetheless, I find an actual analysis to be more compelling than just calling them doo-doo heads or whatever.
Show threadBillFeb 11
@mattblaze No, no, you are absolutely right, and the gentleman here.
Show threadMacCruiskeenFeb 11
@mattblaze @Sempf their boss is a doo-doo head.
Show threadMatt BlazeFeb 11
@maccruiskeen @Sempf Fact check: true
Show threadJonathanFeb 11
@mattblaze Are there any restrictions around how the federal government can use what they seized beyond the scope of this investigation?
Show threadMatt BlazeFeb 11
@infrequentbrilliance In general no.
Show threadLisa Lorenzin (she/her)Feb 11

@mattblaze Joyce Vance (former federal prosecutor) concurs:
https://joycevance.substack.com/p/fulton-county-whats-in-the-warrant

Why aren't we talking about the judge who signed off on this pile of feces? This seems like either incredible judicial negligence or straight-up political bootlicking.

Fulton County: What's In The Warrant?

Hint: Everything but probable cause

Civil Discourse with Joyce Vance
Show threadMatt BlazeFeb 11
@llorenzin I lean toward the possibility that the judge didn't read it.
Show threadLisa Lorenzin (she/her)Feb 12
@mattblaze so option 1. I don't know whether that would be better, or worse...
Show threadgrechawFeb 11
@mattblaze but they got the ballots and corrupted chain of custody, right?
Show threadSpace WranglerFeb 11

@mattblaze

Just red meat for the MAGA base and for POTUS to justify sending in ICE. The Qspiracy never needed facts anyway

Show threadMax GrossFeb 11
@mattblaze I believe it's been a joke for some time in the legal community that judges will give out warrants like they're candy. It seems this may yet another example for why that joke goes around in the first place.
Show threadMatt BlazeFeb 11
@maxgross I don't think that's right. Mostly warrants are supported by persuasive affidavits. Judges don't generally question the honesty of the agents, but they do make them state the case. And the defense generally will eventually see it and can challenge it.
Show threadMax GrossFeb 11

@mattblaze I posted before I saw your followup (that affidavits usually say "Based on my experience, <something> is indicative of <conduct>"). That aligns with the few affidavits I've read -- and this is not my area of expertise.

Still, I've believed citing an agent's training and expertise, alone, is not sufficient for PC.

Doctors still have to cite papers, even if they're experts. It seem reasonable for agents to cite specific courses and research that forms the basis of their training

Show threadMatt BlazeFeb 11
@maxgross Yes, but the affidavit isn't supposed to be a raw dump of facts. The agent can use their expertise and experience to analyze the evidence to explain why it constitutes PC.
Show threadColin WarrenFeb 11
@mattblaze Thank you for reading and commenting
Show threadTodd KnarrFeb 11
@mattblaze Do we know how many judges they tried before they got one to sign off on it?
Show threadmccFeb 11
@mattblaze *Waving arms helplessly* What if an envelope. Was big
Show threadmccFeb 11
@mattblaze Artist's rendering of hypothetical "Big Envelope" cryptid
Show threadMatt BlazeFeb 11
@mcc absentee ballot envelopes are of a particular form and are provided with the blank ballots sent to the voters.
Show threadmccFeb 11
@mattblaze I am a permanent absentee voter and I have more than once voted by downloading a PDF and mailing it in in my own envelope. Can you clarify if you mean "in Georgia"?
Show threadMatt BlazeFeb 11
@mcc yes , this is a thread about Georgia that you responded to.
Show threadmccFeb 11
@mattblaze Thanks
Show threadTrammell HudsonFeb 11
@[email protected] how they would react to my absentee ballot, which is sent by fax and I'm assuming printed by the board of elections.
Show threadEllenMarch218h ago
@mattblaze just…wow