LIVE: DOJ Makes HUMILIATING ERROR in Key Election Case…
Quick Read
Summary
Takeaways
- ❖The Fulton County election case involves a 41(g) motion by the county to retrieve ballots seized by the FBI, requiring proof of 'callous disregard for constitutional rights' and 'need' for the property.
- ❖The DOJ provided a digital copy of the seized ballots just before a hearing, attempting to undercut Fulton County's 'need' argument.
- ❖A subpoena for the FBI agent who wrote the warrant affidavit was quashed, limiting Fulton County's ability to prove the warrant was based on 'reckless or intentional omissions' (Franks v. Delaware claim).
- ❖Fulton County's primary argument for 'callous disregard' now centers on the warrant being a 'pretext' – using criminal process to obtain materials unsuccessfully sought via civil litigation.
- ❖Harmeet Dhillon, head of the DOJ Civil Rights Division, made public statements in interviews and on social media that detail the timeline of civil and criminal actions, directly supporting the 'pretext' argument.
- ❖Dhillon explicitly connected the county's non-cooperation in civil requests to potential criminal consequences, further undermining DOJ's privilege claims.
- ❖This pattern of public commentary by DOJ officials has historically led to judges allowing discovery on vindictive/selective prosecution claims and ethics investigations, as seen in cases like Abrego Garcia and Ksenia Petrova.
Insights
1The 'Evil to Incompetent' Spectrum of DOJ Actions
The host frames the Department of Justice's actions on a spectrum from 'evil' to 'incompetent.' The 'evil' side includes Office of Legal Counsel memos that have been controversial, such as those on torture or the inability to indict a sitting president. The 'incompetent' side refers to self-sabotaging errors made by the administration, particularly in public statements, which undermine their own legal cases.
The host introduces the concept of a 'non-binary spectrum of evil and incompetence' in evaluating administration actions, citing OLC memos as examples of 'evil' and the Fulton County case as 'incompetent.'
2Fulton County's 41(g) Motion and the Ritchie Factors
Fulton County filed a 41(g) motion to retrieve election ballots seized by the FBI. To succeed, they must satisfy four 'Ritchie factors': 1) callous disregard for constitutional rights (most indispensable), 2) interest in and need for the property, 3) irreparable harm if property isn't returned, and 4) lack of alternative legal remedies. This is a high bar, similar to what Donald Trump faced in his Mar-a-Lago documents case.
The guest details the four Ritchie factors, emphasizing 'callous disregard' as the 'most indispensable' factor, as stated by the 11th Circuit in the Trump case.
3DOJ's Actions Undermine Fulton County's 'Need' Argument
Just before the 41(g) hearing, the DOJ provided Fulton County with a digital copy of the seized ballots. This move was intended to weaken Fulton County's argument that they 'needed' the physical ballots, thereby making it harder to prove irreparable harm. The judge appeared unconvinced by Fulton County's remaining arguments for needing the physical ballots, such as authentication for open records requests.
The guest explains that the FBI and DOJ gave the county a digital copy of seized materials 'right on the eve of the hearing,' which 'undercuts some of the county's arguments' for need and harm.
4Quashing FBI Agent's Subpoena Impedes 'Callous Disregard' Proof
Fulton County sought to subpoena the FBI agent who wrote the affidavit for the search warrant, aiming to prove 'callous disregard' by demonstrating reckless or intentional omissions of material information, a 'Franks v. Delaware' claim. However, Judge Boule quashed the subpoena, accepting the government's claim of privilege (Touhy regulations), which significantly hindered Fulton County's ability to establish the agent's state of mind and thus prove callous disregard.
The guest states that Judge Boule quashed the subpoena for the FBI agent, which was 'a huge blow' to the callous disregard argument, as it prevented the county from showing the agent's 'reckless or intentional state of mind.'
5Harmeet Dhillon's Public Statements Undermine DOJ Privilege Claims
Fulton County's strongest argument for 'callous disregard' became the 'pretext' theory: that the criminal search warrant was used to obtain materials the DOJ's Civil Rights Division, led by Harmeet Dhillon, had unsuccessfully sought through civil litigation. Dhillon's public statements in interviews and on social media, detailing the timeline of civil requests followed by the criminal warrant, and explicitly linking non-compliance in civil matters to potential criminal consequences, directly support this 'pretext' argument and undermine the DOJ's claims of law enforcement and deliberative process privilege regarding the investigation's timeline.
A video clip shows Harmeet Dhillon explaining the sequence: civil letters, then a lawsuit, then 'other colleagues of mine at the Department of Justice learned that they believe they had probable cause to obtain a search warrant.' Another clip shows her stating that if materials aren't obtained through the 'front door' (civilly), 'it may become criminal in nature.' The guest confirms these statements 'undercut the invocations of privilege.'
Lessons
- Legal teams should meticulously document all public statements made by opposing counsel or government officials, as these can be critical in challenging privilege claims or establishing 'pretext' or 'vindictive prosecution' arguments.
- When facing government actions that seem to follow a failed civil attempt, investigate the timeline and public statements of officials to build a 'pretext' argument for 'callous disregard' of constitutional rights.
- Understand that in 41(g) motions, while 'need' for seized property is important, 'callous disregard for constitutional rights' often carries the most weight, especially if supported by evidence of improper government motive.
- Recognize that government claims of privilege (e.g., law enforcement, deliberative process) are 'qualified' and can be overcome if evidence, particularly public statements, demonstrates a waiver or undermines the privilege's basis.
Quotes
"This administration has a tendency in its fury to discredit Donald or, you know, and even criminally charge Donald Trump's political enemies, they seem to want to go out and just talk a lot about things on the air, on news stations, on podcasts and things like that. And it doesn't always work out well for them when they do that."
"If you know anything about basic election law in Georgia and you read this affidavit, it really is just completely divorced from reality. And there are certain things in there that just like are really just bad omissions or misleading kind of statements that if if it if the full picture wasn't included, I feel quite confident that there would be no way for the magistrate to find probable cause on this affidavit."
"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, they're if they're not complying to help us help them do their jobs correctly, then it may become criminal in nature."
"This administration just can't seem to keep its mouth shut about ongoing investigations. And there was a norm before that, you know, the most you could get from a spokesperson or an administration official beyond the contours of just the indictment itself would be a no comment."
Q&A
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