President Donald Trump's administration escalated his ongoing efforts to overturn his 2020 election loss by raiding an office in the Georgia county where he was indicted for racketeering.
The 79-year-old president has insisted the election was stolen from him and has faced charges in Fulton County and the District of Columbia for his efforts to overturn that loss, but CNN legal analyst Elie Honig said the Department of Justice's investigation hasn't necessarily turned up evidence of fraud – a claim that has been repeatedly rejected by previous examinations.
"There are some things when you're a prosecutor, you don't need anyone's permission to do," Honig said. "If I want to serve a subpoena, I don't need to get a judge's permission, I just serve the subpoena. There are some things you need to just sort of run by the judge. There's something called the pen register, where you look at what phone numbers a different phone number's calling. You need to just tell the judge, hey, judge, we're doing this, we have good reason, but you don't have to say what the reason is. Then there's a search warrant, and there you need to establish probable cause, and you need to do it with specificity and in detail. You have to write up an affidavit."
"I've done a lot of these – it's a pain," he added. "You bring it over to the judge, the judge reviews and says, okay, I find probable cause. Now, a couple of important caveats. Probable cause is a low standard. It's not nothing, but it's a [low] standard, and judges are not in any position to question the credibility of the evidence you bring them. So if you say in your affidavit, I have a witness who tells me that some crime happened, the judge is not in position to cross-examine that witness or to say, gee, I don't know if I believe that witness. So all you have to do as a prosecutor is make a facial showing. But, yes, a judge is supposed to give it, and in this case, a magistrate judge did review this and find there's probable cause that a crime was committed and that you'll find evidence of that crime in the place you're searching."
Judges tend to defer to prosecutors on search warrants, but Honig said local officials in Fulton County had no way to challenge the warrant they have protested as faulty.
"There's no way, really, for Fulton County to put in a motion to a judge and say, we didn't like that search warrant, something was improper about it, cancel it and give us our stuff back," Honig said. "There's just no procedure for that. So you're sort of at the mercy of the government until the point if and when there's ever a charge, then you can challenge."
Honig argued that the statute of limitations for any alleged crime committed around that election had likely run out by now.
"The normal statute of limitations on almost all federal crimes is five years," he said. "So the 2020 election was over five years ago, the transition period was over five years ago. So the only way they get around this, there are some crimes that have a longer statute than five years, but I can't think of one that might be applicable here. But the other thing is, if you charge a conspiracy, as long as you can show some act that carries on into your five year period, then you're okay. But they're going to have I think there's going to be a statute of limitations here."
The presence of Trump's intelligence chief Tulsi Gabbard also raised Honig's eyebrows.
"No idea, totally bizarre," he said. "There's no reason for the DNI, I mean, we heard the president say, well, she's there, she's trying to ensure that the next election is safe. Why would she need to be on the ground as agents are wheeling boxes of ballots out of Fulton County, Georgia? I think it's just for show, and it's not something I've ever seen before."
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