Two cases and the grease that breaks democracy

When Texas filed an outlandish lawsuit to throw out the presidential election results in four other states in Dec. 2020, one of the state’s lawyers was Kurt Olsen. Two years later, when election denier Kari Lake sought to contest her defeat in the Arizona governor’s race, her lawyer was Kurt Olsen. And when Mike Lindell set out to assemble a network of election deniers to spew increasingly wild ideas, guess who he thought would be a natural fit for the group? Kurt Olsen.

If Trump were an actual mob boss, Olsen would be considered a made man. He not only spoke with Trump three times on Jan. 6, but he was also sanctioned by Arizona courts in connection with his representation of Lake. So, it came as little surprise that when it was time for Donald Trump to knight an election denier to spearhead his effort to discredit the 2020 election, he turned to Kurt Olsen.

With the affidavit supporting the search warrant for Fulton County’s election offices now unsealed, it makes one thing clear: Olsen is still hard at work. According to the documents, the FBI’s most recent criminal probe into the 2020 vote in Georgia originated with Olsen.

I must admit that when I heard the affidavit would be released to the public, I expected to see a flood of new, unsubstantiated and far-fetched claims. Instead, it was little more than warmed-over election lies and long-debunked conspiracies. Very little was new. Much of it was false.

All of this raises a series of troubling questions.

How did we end up with a MAGA U.S. attorney in Missouri successfully shepherding a ridiculous search warrant past a magistrate judge to seize six-year-old ballots?

Why did a federal magistrate sign off on a search warrant based on an affidavit containing so many easily verifiable falsehoods?

Most importantly, if this can happen once with respect to old ballots, what is preventing a bogus affidavit from serving as the basis for seizing ballots during the 2026 midterms?

At this point, we do not yet have satisfactory answers. Fulton County’s litigation seeking the return of the seized materials will continue, and the unsealed affidavit gives those efforts a real chance of success. At a minimum, it should put to rest the notion that the Trump administration has any real evidence of wrongdoing.

Shortly after news of the Georgia affidavit became public, we learned that the Department of Justice had asked a federal grand jury in Washington, D.C., to indict six Democratic members of the House and Senate for reminding members of the military that they are required to refuse illegal orders from the president. The D.C. grand jury refused, sending U.S. Attorney Jeanine Pirro back to the White House empty-handed.

The obvious lesson many are drawing is that ordinary citizens are more reliable protectors of democracy than judges in black robes. I understand the impulse to frame this as a matter of good versus bad outcomes, but that view misses the mark.

The six members of Congress were still targeted by the DOJ. Their First Amendment speech was still pored over and analyzed as part of a criminal probe. And while this grand jury, this time, may have acted as a check on executive branch abuse of power, that will not always be the case.

The obvious lesson many are drawing is that ordinary citizens are more reliable protectors of democracy than judges in black robes.

For every grand jury that refuses to indict, there are others that will listen to the one-sided presentation of prosecutors and agree to find probable cause that a crime has been committed.

Our criminal justice system is built on federal prosecutors having every advantage in court. It gives government officials the benefit of the doubt — even when the law does not require it. The presumption of good faith judges afford DOJ lawyers and FBI agents is the grease that makes the system run smoothly and efficiently.

The problem for democracy is that it will not survive three more years of such a system. We cannot hold free and fair elections if judges blindly accept the word of Pam Bondi and Kash Patel’s minions.

What happened in Georgia is a tragedy for the future of free and fair elections. It will only encourage more searches and more seizures.

But what happened in Washington, D.C., is no less a threat to the rule of law. Yes, ordinary citizens prevented that episode from becoming a full-blown crisis, but I am not convinced the lesson the DOJ will learn is to retreat from its misuse of federal grand juries. More likely, it will look for ways to present politicized cases to grand juries in more conservative parts of the country.

The problem democracy is that it will not survive three more years of such a system.

The events of the last 24 hours must serve as a wake-up call for a federal judiciary that has grown too comfortable deferring to the executive branch and too slow to hold it accountable.

The federal court in Georgia will have an opportunity to review the search warrant affidavit anew. If it is as deficient as it appears, the court must order the return of the seized materials. If the affidavit contains misstatements, the court’s response must go further to vindicate the rule of law.

Meanwhile, judges overseeing grand juries and presiding over the prosecutions of prominent Democrats must recognize what is happening and dismiss politically motivated cases.

These are not dramatic acts by judges attempting to rebalance the scales of justice. They are the minimum steps necessary to prevent the scales from toppling over altogether.