Joyce Vance: Fulton County Files Its Brief

[Nevilledog]

https://joycevance.substack.com/p/fulton-county-files-its-brief

Fulton County did not mince words in its amended response to the government’s motion to quash.

A motion to quash is an attempt to prevent a witness from testifying. Here, the federal government wants to keep the FBI agent who signed the affidavit that persuaded a federal magistrate judge that the government had probable cause to seize Fulton County’s ballots and other election records off the witness stand. Fulton County has requested the agent’s testimony at the hearing on its motion to return those records, a motion we discussed most recently earlier this week.

The government has a great deal of authority to limit circumstances in which its employees can testify under rules known as “Touhy (two-e) Regulations.” But its discretion isn’t limitless, and here, the County is challenging whether the regs permit this government to withhold this particular witness’s testimony in these circumstances. It is also challenging the decision to prohibit the agent from testifying as “arbitrary and capricious.”

“Special Agent Evans’s testimony,” they write, “is central to this motion. His affidavit—which misstated and omitted key facts that if accurately disclosed would have undermined any pretense of probable cause—provides the sole support for the warrant at issue.” The County also did something important here, not insisting that it was entitled to go on a fishing expedition when it questioned the agency, but instead, voluntarily offering to respect any “relevant privileges” which might restrict the agent from answering some questions. The Trump administration wouldn’t budge. That won’t help their credibility with the Judge.

Fulton County makes that point clearly: “It is of course a litigation advantage to present and rely on a witness while barring all examination by the adverse party, and Respondent has offered no reasoned justification for it. That kind of raw opportunism, as well as Respondent’s shifting purported justifications for denying the request, is the height of arbitrary and capricious decision-making.”

*snip*