Lawfare has the unsealed affidavits for the Fulton County elections office search warrants, which are online at the link.
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@mattblaze could the argument be that they destroyed records before the 22 month retention period was complete (an act within the past 5 years) to cover up the "knowingly and willfully depriving" crime, extending the timeline of "knowing and willingly depriving" crime into the statue of limitations?
@novelgazer I don’t see how that works, since any alleged destruction would have still occurred more than five years ago (the recount and certification of the election was more than 5 years ago).
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@novelgazer I don’t see how that works, since any alleged destruction would have still occurred more than five years ago (the recount and certification of the election was more than 5 years ago).
@mattblaze I might not be understanding the timeline correctly. If they recounted in December 2020, they'd need to retain records around that until October 2022. If they destroyed records in September 2022, that would be a violation and that would be under 5 years ago. Is that right?
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@mattblaze I might not be understanding the timeline correctly. If they recounted in December 2020, they'd need to retain records around that until October 2022. If they destroyed records in September 2022, that would be a violation and that would be under 5 years ago. Is that right?
@novelgazer yes, but there’s no allegation or evidence in the affidavit to suggest that any destruction would have occurred after December 2020.
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@novelgazer yes, but there’s no allegation or evidence in the affidavit to suggest that any destruction would have occurred after December 2020.
@mattblaze oh, I see that now. I was thrown off by paragraph 14 where a complaint was filed in 2022. Could they be making the bonkers claim that, since the records continued not to exist when 22 months later, that the clock started then?
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@mattblaze oh, I see that now. I was thrown off by paragraph 14 where a complaint was filed in 2022. Could they be making the bonkers claim that, since the records continued not to exist when 22 months later, that the clock started then?
@novelgazer that would indeed be bonkers, since 20701 requires preservation of records that “come into his possession”. No duty to preserve records you never got.
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@mattblaze oh, I see that now. I was thrown off by paragraph 14 where a complaint was filed in 2022. Could they be making the bonkers claim that, since the records continued not to exist when 22 months later, that the clock started then?
@mattblaze that's a rhetorical question, I guess. No need to weigh in on bonkers conjecture. Thanks for clarifying
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@novelgazer that would indeed be bonkers, since 20701 requires preservation of records that “come into his possession”. No duty to preserve records you never got.
@mattblaze let's not let the lack of an actual crime get in the way
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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.
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.
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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.
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.
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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.
The agent who swore out the affidavit appears is a relatively junior agent (5 years out of the academy), with no apparent 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).
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The agent who swore out the affidavit appears is a relatively junior agent (5 years out of the academy), with no apparent 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).
If these affidavits constitute the entirety of the probable cause presented to the court, I'm surprised that the judge granted the warrant.
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If these affidavits constitute the entirety of the probable cause presented to the court, I'm surprised that the judge granted the warrant.
@mattblaze Thank you for reading and commenting
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If these affidavits constitute the entirety of the probable cause presented to the court, I'm surprised that the judge granted the warrant.
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.
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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.
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.
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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.
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.
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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.
@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.
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@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.
@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.
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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.
@mattblaze but they got the ballots and corrupted chain of custody, right?
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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.
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.
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@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.
@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
