Judge J.P. Boulee, the federal judge in the Northern District of Georgia who is hearing the Fulton County voting records case, issued an order this morning. It reads: "The Court understands that mediation has been unsuccessful. Consequently, the Court is now taking the Motion to Vacate Hearing and to Quash Subpoena under advisement."

After the Justice Department executed a search warrant and seized ballots and other records from Fulton County, the County filed a motion under Rule 41(g) of the Federal Rules of Criminal Procedure seeking the return of their records. That motion triggers a process where the court holds a hearing and takes evidence so it has a basis for deciding the motion. That process isn't optional; it's required under a case called Franks v. Delaware, where the Supreme Court held, "The court must receive evidence on any factual issue necessary to decide the motion."

The government responded by filing a motion to prevent the hearing from taking place, and especially, to quash the subpoena that requires the FBI Agent, whose under oath affidavit provided the rationale for the search warrant, to testify at the hearing. We discussed the warrant and its contents in detail here. You may recall that there was a lot of surprise when the warrant passed muster with the magistrate judge who signed off on it, because the affidavit provided more speculation than it did probable cause. That could make for some interesting testimony and offer a solid reason why the government might want to keep the agent off the stand.

. . .

The outcome of the matter in Fulton County could have strong repercussions across the country, as Trump continues to try to relitigate the 2020 election in states where he lost. Although the government is almost certain to appeal if it loses before Judge Boulee, this is the same Eleventh Circuit that was hostile to Northern District of Florida Judge Aileen Cannon's one-sided actions, and it may not be an overly friendly forum for the government, depending on the panel of judges it draws and how strong the perception that it's behaving in an unduly heavy-handed manner is.

. . .