Attorneys representing the state of Georgia have urged a federal judge to mandate the immediate return of all 2020 ballots seized from Fulton County, arguing that the FBI’s affidavit, which supported the Trump administration’s search warrant, failed to demonstrate probable cause. This assertion was made during a court session on Tuesday.

In an amended legal filing, the state outlined its case for the return of the confiscated materials. This filing was informed by a review of the affidavit presented to a magistrate judge, which was used to authorize the search. Fulton County officials argued that the affidavit fell significantly short of providing evidence that a crime had occurred.

Even prior to the unsealing of the affidavit by U.S. District Judge J.P. Boulee, Fulton County officials had expressed concerns over what they described as an “abuse of the criminal process” by the Trump administration. They accused the administration of relying on outdated conspiracy theories about the 2020 election and omitting crucial facts when presenting their case to U.S. Magistrate Judge Catherine Salinas.

The county’s legal team anticipated that the government would base its case on what they termed “baseless” and “unfounded” allegations of widespread voter fraud in the 2020 election. They argued that the affidavit did not convincingly establish probable cause.

Fulton County now contends that the affidavit supports the initial stance of Robb Pitts, Chairman of the Fulton County Board of Commissioners. Pitts has maintained that the Trump administration’s actions—seizing ballots, ballot images, tabulators, and voter rolls—constituted a blatant constitutional breach aimed at altering the narrative of President Donald Trump’s electoral defeat by Joe Biden.

The county characterized the warrant as “entirely devoid of probable cause” and described the seizure as a “flagrant constitutional violation.” They claimed the Trump administration failed to present any evidence from the FBI’s investigation that would substantiate probable cause for believing any intentional or willful violation of criminal laws had occurred.

“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 , 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.”