Fulton County’s Uphill Battle for Ballots

On March 27, U.S. District Judge J.P. Boulee held a day-long evidentiary hearing in Pitts v. United States, a case in which Fulton County officials are seeking the return of the county’s 2020 election materials, which were seized by the FBI earlier this year. 

The hearing offered the clearest indication yet of how Judge Boulee might rule on Fulton County's motion for return of property. Although the judge pressed both sides with pointed questions during the proceeding, he appeared skeptical that the county has made a sufficient showing to justify its requested relief.

The legal standard governing the county's motion is a demanding one. The motion was filed under Rule 41(g) of the Federal Rules of Criminal Procedure, which allows a person “aggrieved by an unlawful search and seizure of property or by the deprivation of property” to move for the property's return. But demonstrating that the underlying search was unlawful is not, by itself, enough. When a Rule 41(g) motion is filed at the pre-indictment stage—as it was here—binding Eleventh Circuit precedent requires the court to consider four factors in determining whether to exercise its equitable jurisdiction.

Known as the Richey factors, the four-prong analysis includes the following: whether the government acted with “callous disregard” for the movant’s constitutional rights; whether the movant faces irreparable harm; whether there is a cognizable interest in and need for the seized property; and whether adequate alternative remedies exist at law. 

To make matters even more demanding for the county, a recent factual development complicated its arguments on two of the four factors: harm and need. Ahead of the hearing, the federal government produced a digital copy of the seized election records, undercutting the county’s claims that it requires the physical materials and that continued federal retention of the records causes irreparable harm.

Responding to this development during the hearing, Abbe Lowell, an attorney representing Fulton County, argued that the county still needs the physical records to comply with open records requests, contending that it cannot authenticate the copies without the originals. Judge Boulee appeared unpersuaded. That doesn't seem to be a “gigantic” issue, he remarked.

The Richey factor that commanded the most attention during Friday's hearing, however, was the one the Eleventh Circuit identified as most “indispensable”: whether the government acted with “callous disregard” for the county's constitutional rights.

Fulton County's primary theory for meeting that standard rests on alleged material omissions from the warrant affidavit sworn out by FBI Special Agent Hugh Raymond Evans. In its pre-hearing briefs, the county cited the Supreme Court's decision in Franks v. Delaware, which held that a warrant violates the Fourth Amendment if the affiant knowingly or recklessly includes false statements or omits facts necessary to the finding of probable cause.

But that argument faced a significant setback on the eve of the hearing, when Judge Boulee quashed a subpoena the county had issued to Evans himself. Without the agent's testimony, the county had little opportunity to substantiate its claim that the affidavit's omissions were intentional or reckless rather than merely inadvertent—a distinction that is critical not only to showing the search was unlawful, but also to demonstrating the kind of “callous disregard” required for relief under Rule 41(g).

Evans’s absence proved consequential. The county’s principal witness, election technology and security expert Ryan Macias, testified on direct examination about the numerous instances in which the affidavit omitted key information or mischaracterized aspects of the election process, ultimately opining that its allegations were not “based in reality.” On cross-examination, however, the government underscored a critical limitation of this testimony: Macias could identify alleged errors or omissions, but he could not speak to the agent’s intent. Pressed repeatedly by Justice Department attorney Tysen Duva about what he knew of Evans’s state of mind, Macias acknowledged that he did not have personal knowledge of the agent’s intent or investigative decision-making. 

Judge Boulee indicated that the omissions in the affidavit may not be as egregious as the county contends. In an exchange with Lowell, he noted that the affidavit in several instances includes “contrary information” that cuts against probable cause. That observation may signal some reluctance to infer intentional or reckless omissions from a document that elsewhere incorporates adverse facts.

The judge appeared somewhat more receptive to the county’s other “callous disregard” argument, which focuses on the circumstances and timeline leading up to the warrant. As Lowell explained, the Justice Department's Civil Rights Division first sought election records from Fulton County in October 2025. When the county declined to produce those records, the Justice Department escalated the matter, filing a civil suit against the county that December. Then, roughly six weeks later, the FBI obtained a criminal warrant to seize what appears to be the very same records. 

Lowell argued that this sequence of events supports an inference that the criminal warrant was pretextual—a way for the Justice Department to obtain through coercive process what it had been unable to secure through civil litigation. Judge Boulee appeared to agree that this theory, if substantiated, would strengthen the case that agents acted with the kind of callous disregard required under the Richey factors.

Whether the county can muster enough evidence to substantiate that theory is another matter entirely. Having been denied the chance to examine Evans, Lowell could not establish precisely when the Justice Department’s criminal investigation actually began—leaving open the possibility that it predated the Civil Rights Division’s efforts to obtain such records. At best, he could point to public reporting indicating that Kurt Olsen, the White House official whose criminal referral initiated the investigation, was appointed to his position sometime around October 2025. Later that month, on Oct. 30, the head of the Justice Department’s Civil Rights Division, Harmeet Dhillon, sent a letter seeking 2020 election materials to the Fulton County Board of Registration and Elections.

The Justice Department, meanwhile, sought to cast doubt on Lowell’s pretext theory. Under questioning by the judge, both Duva and his colleague, Michael Weisbuch, said that they were “unaware” of any meeting in which Justice Department officials discussed using a search warrant to circumvent the need for civil litigation. Boulee treated this as a meaningful denial, saying it “helps” the government's position. In response, Lowell was quick to point out that being unaware of something is not the same as denying that it occurred.

At the time of this writing, Judge Boulee has yet to rule on the county’s motion for return of property. In the days following the hearing, however, the county moved swiftly to shore up the evidentiary gaps in its pretext argument. In a motion filed on March 30, three days after the hearing, the county asked Judge Boulee to order “additional evidentiary development” on the question of whether the search warrant was used to circumvent civil litigation. To that end, the county wants to compel the government to answer several threshold questions about its investigation—including when Olsen made the criminal referral and when the underlying criminal inquiry began.

The filing also proffered additional circumstantial evidence to support its theory that the criminal and civil proceedings were linked. That evidence includes a social media post by Dhillon, in which she appears to imply that the warrant was somehow connected to Fulton County’s refusal to cooperate with the Civil Rights Division’s request for election records.  

That post is not the only time Dhillon has suggested that local officials’ failure to cooperate with her requests for election records could result in criminal consequences. During an appearance on the right-wing TV program Just the News last month, journalist John Solomon raised the subject of the FBI’s search in Fulton County. Dhillon stated: 

My jurisdiction, statutorily, is civil in nature. And so my colleagues, after we’ve tried to go through the front door and get these materials voluntarily, if they’re not complying—to help us help them do their jobs correctly—then it may become criminal in nature... 

Other public statements offer some insight into the timeline. During a lengthy interview with investigative journalist Catherine Herridge in February, Dhillon suggested that the Justice Department obtained information to support probable cause for the search warrant only after the Civil Rights Division filed its civil suit against Fulton County. As Dhillon explained:

It was like a big shell game of ‘who’s got the ballots?’ So I then filed a lawsuit…While that case has been pending, which was filed fairly recently, just weeks ago, other colleagues of mine at the Department of Justice learned that they believe they have probable cause to obtain a search warrant concerning potential criminal violations of the law…We don’t know exactly what was there, whether that’s the totality of what I was looking for or not. So that is to be determined. (emphasis added)

Though Fulton County does not cite these statements in its most recent filing, they appear to lend some support to the county’s theory that the warrant was merely a pretext for securing access to records that the Justice Department was seeking through civil litigation.

The county may yet secure more information to supplement the record. Judge Boulee has ordered the parties to meet and confer on the county’s requests for additional evidence from the government regarding the timing of the investigation. 

Still, based on the hearing's tenor, the county faces a steep uphill climb. Judge Boulee's skepticism on the county’s Franks theory, his dismissiveness toward the harm and need arguments, and his careful hedging on the pretext theory all point in the same direction.