Election skeptics eagerly await criminal charges in Fulton election case

Voting integrity advocates who believe the 2020 election was rife with fraud have been jubilant since the FBI seized Fulton County’s ballots last month.

They’ve been hailed as heroes for keeping the issue alive until the FBI intervened. And they’re convinced that prosecutions of election officials, politicians and even judges are coming.

“I think there are going to be indictments,” Garland Favorito, whose lawsuit kept the county’s ballots under seal for years until the FBI seized them, told a podcast host two days after the raid. “This was a criminal investigation.”

Election and legal experts who reviewed the evidence used to obtain the FBI search warrant have reached a different conclusion. They doubt the investigation will lead to successful prosecutions. They say the evidence of a crime is scant and the legal obstacles to prosecution are steep.

“There is absolutely nothing in here that makes me believe — even if everything they said in the affidavit is true — that they could successfully prosecute anyone,” said Justin Levitt, a former Justice Department attorney and law professor at Loyola Marymount University.

The stark contrast between election skeptics’ expectations and legal experts’ assessments suggests one of those groups will be surprised by the outcome of the Fulton County investigation. But whatever happens, it’s clear the election skeptics have been a motivating force in the investigation so far.

After five years of watching courts and the political establishment dismiss their claims, the skeptics have gained power in the Trump administration and the Georgia State Election Board. And they are wielding that power to reinvestigate voting fraud allegations that have been adjudicated or dismissed by state officials in the years since the 2020 election.

Levitt acknowledged there could be arrests — even if the prosecutions fall apart under scrutiny.

“I can’t think of a reason (for arrests) other than, ‘We promised you some candy,’” he said. “‘Here’s some candy.’”

Smoking guns up in smoke

It’s been a tough five years for election skeptics.

Courts quickly dismissed allegations that foreign powers rigged voting machines to steal the election from Donald Trump. Fox News paid a whopping $787 million defamation settlement for promoting those claims. Other conservative media companies and personalities also settled lawsuits.

A jury likewise ordered Trump attorney and former New York City Mayor Rudy Giuliani to pay $148 million for making false voting fraud allegations against two Fulton County election workers.

Allegations of widespread “ballot harvesting” resulted in an apology to a Gwinnett County man falsely accused of election fraud in the film “2000 Mules.” And allegations of counterfeit ballots fell apart after investigators searched the batches identified by Republican auditors and found no such ballots.

Throw in numerous failed lawsuits, four guilty pleas in the Georgia election interference case, Trump-aligned attorneys losing their law licenses and the prosecution of Trump himself in Georgia and Washington, and the campaign to prove voting fraud seemed to be a disaster.

But election skeptics never gave up.

In December 2020, Favorito, an election integrity advocate and conspiracy theorist, filed a lawsuit seeking to review Fulton County’s ballots. Though a judge recently dismissed most of its claims, the lawsuit kept the ballots tied up in court long after they would have been destroyed under routine circumstances. That meant they were there for the taking when the FBI served its search warrant last month.

And some of the skeptics’ accusations against Fulton County proved to be more substantive.

Investigations confirmed the county double-scanned more than 3,000 ballots, and a conservative data expert says he’s confirmed they were actually counted twice. If they were, it still would not have changed the outcome of the election.

Investigators also cited careless ballot handling and other problems that led to reprimands and a consent order requiring corrective action.

Investigators and an independent election observer attributed the problems to mismanagement but saw no evidence of intentional wrongdoing.

Gaining power

Some election skeptics believed the state investigations amounted to cover-ups. And in 2024, they found an ally in the new right-wing majority on the State Election Board.

The board reopened investigations and subpoenaed 2020 election records. Trump’s reelection gave the board and the election skeptics powerful allies in Washington. The Washington prosecutor dropped the charges against Trump after the election. The Georgia prosecution, already on life support when Fulton County District Attorney Fani Willis was disqualified, was dismissed last fall.

Trump continues to claim that the 2020 election was stolen, so when the State Election Board requested help last summer, Trump’s Justice Department was happy to intervene.

Though the Justice Department filed a lawsuit, last month’s FBI raid seemed inevitable. When it came, it sparked a celebration among Georgia election skeptics — some snapped selfies at the alleged crime scene. The activists were lauded as heroes.

“How does it feel, after all those years of fighting and being mocked and ridiculed and sued and all that, how does it feel this morning?” podcaster and former Trump strategist Steve Bannon asked State Election Board member Salleigh Grubbs the day after the raid.

“Well, you know, Steve, it’s kind of surreal,” Grubbs responded. “It’s just a good feeling to know that the FBI was there, that they were following procedures.”

The skeptics are convinced the FBI will confirm their fraud claims. They say the investigation is about discovering what really happened in 2020 so future elections can be safeguarded.

Some believe that might require prosecutions.

Activist Kylie Kremer, who helped organize Trump rallies in 2020, believes Secretary of State Brad Raffensperger is a likely target. On social media, she said, “the DOJ is going to find that he personally committed federal crimes and oversaw his staff also committing federal crimes.”

On a recent webcast, Favorito wondered whether the judge who dismissed his claims “could be prosecuted for being criminally complicit.” And on another webcast, State Election Board member Janice Johnston contemplated charges against Fulton County officials for contesting a board subpoena for election materials and seeking to charge $435,000 for access.

Johnston said she wasn’t privy to the crimes the FBI is investigating, “but obstruction (of justice) or delay or intentional misleading of information certainly could and should be considered.”

No ‘there’ there?

Election and legal experts say such prosecutions are highly unlikely to be successful. They reviewed the affidavit used to justify the FBI search warrant, a 263-page report by election skeptics mentioned in the affidavit or both.

Charles Stewart, an election expert at the Massachusetts Institute of Technology, said Fulton County’s 2020 election errors were caught and corrected, and Democrat Joe Biden’s victory was confirmed by three counts.

“It is a shame that an FBI agent endorsed what is clearly a set of conspiracy theories that have long been debunked,” Stewart said. “And it’s also a shame that the federal government is trying to criminalize what was, at worst, mistakes made with no evidence of malicious intent.”

Michael McDonald, an election expert at the University of Florida, said the election skeptics’ report “appears to magnify warts that occur in every election.”

“The proverbial election administrators’ prayer is, ‘may the election be decisive,’ because errors in any close election can be exploited to cast doubt,” McDonald said.

Georgia State University law professor Clark Cunningham called the evidence in the affidavit “nothing but suspicion and conjecture” and said he saw no evidence that election officials “knowingly and willfully” broke federal laws — which prosecutors would have to prove.

Levitt, the former Justice Department attorney, agreed. He also cited the five-year statute of limitations on federal election crimes as an obstacle to prosecution.

“This is so far from ‘they’ve got the goods,’” he said. “I don’t even see a map to where the goods might plausibly be.”

It remains to be seen whether the Justice Department prosecutes anyone. But Favorito, for one, remains convinced the investigation will find fraud.

He declined to speak to The Atlanta Journal-Constitution. But in public comments at Thursday’s State Election Board meeting, he accused Fulton officials of “repeatedly and illegally” refusing to provide digital copies of the 2020 ballots he sought.