Washington — A federal magistrate judge on Tuesday rejected the Justice Department's 11th-hour attempt to file new criminal charges against two former FBI counterintelligence officials accused of lying to Congress about their role in the Hunter Biden laptop probe.
In a tense exchange, Magistrate Judge Zia Faruqui of the U.S. District Court for the District of Columbia expressed shock and anger at the Justice Department for filing an unsworn and unsigned superseding complaint against the two FBI officials — Bradley Benavides and Nicole Floris — after midnight on Tuesday on the public court docket. Faruqui noted that it was never reviewed by him to establish whether there was probable cause a crime was committed.
Filing an unsworn complaint on the public docket and bypassing judicial review, he said, is unheard of and raises questions about the DOJ's motivations. He said he would be ordering that the new version of the charging documents be "struck from the record," though the Justice Department could try to add new charges the proper way.
The docket was later updated to say that the Justice Department's filings were entered "in error."
"We have never had complaints filed that are unsigned," Faruqui said. "It is inappropriate. It harms the defendants."
"I am unaware of that ever happening before in this court," he added. "I am frustrated that I got it in the middle of the night. But I am much more concerned that it is filed on the public record."
John Borchert, a prosecutor from the U.S. Attorney's Office in Washington, D.C., conceded that the effort by the government to add fresh charges without judicial review in a criminal complaint was a first for him as well.
He asked if Faruqui would agree to let the FBI agent who filed the affidavit in support of the new complaint swear and attest to his filing and then proceed with a hearing to determine if probable cause was met.
Defense attorneys for the two ex-officials balked, with one calling such a move "Kafkaesque" and Faruqui analogizing such an action to simply serving as a notary.
Faruqui accused the government of repeatedly making bizarre moves in the case that only raise concerns, saying it was like throwing gasoline on a fire, citing how the case was charged and the decision to use a special assistant U.S. attorney from out of town to help prosecute the case.
"Everything you're doing is making me more and more concerned," he said. "Why today on this one case have you changed the entire history of how you charge cases? It makes it look like the United States is afraid of me trying to find probable cause."
"Let me address that squarely. We are not afraid of a probable cause finding," Borchert said.
Faruqui said that while he was dismissing the superseding complaint with the new charge of obstructing a congressional proceeding, the court would still proceed with a preliminary hearing to determine whether the original criminal complaint charging them with lying to Congress, which was reviewed by a magistrate judge, meets the probable cause standard.
Mary Dohrmann, one of Floris' attorneys, told the court that the changes between the original complaint and the new one the government tried to file were substantial and raised concerns about accuracy.
"The evidence is mounting that this prosecution is about some political football, and not the law or the facts in this case," she said.
Criminal complaints in felony cases are typically reserved for more exigent circumstances, such as ongoing threats to public safety or national security. And Justice Department guidelines and norms have typically urged prosecutors to avoid taking overt investigative steps on politically sensitive cases so close to a national election.
Prosecutors filing an unsworn and unsigned superseding complaint overnight is likely to raise further questions about whether the case is politically motivated.
"What is going on at the D.C. U.S. Attorney's Office? In the middle of the night, the government filed an unsigned and unsworn complaint attempting to fix the issues with their original charge against Ms. Floris and adding a new charge just as meritless as the first one," said Floris' legal team in a statement provided to CBS News.
"In our combined decades of DOJ service, we have never seen or even heard of something like this being filed," the lawyers said. "That's because the public lodging of criminal charges must be authorized by the grand jury, a judge, or the defendant herself. Here, the government has taken that power for itself in a desperate attempt to delay our client's right to challenge the charges in court and litigate this case in the media, rather than the courtroom. We have asked to address this outrageous government conduct against a decorated public servant at today's court hearing."
The charges center on testimony that Floris and Benavides gave a congressional committee on July 19, 2023 and September 28, 2023, respectively.
The superseding complaint alleges the defendants "knowingly and willfully provided materially false statements to the Committee about their respective awareness of and involvement in the FBI's investigations into Hunter Biden, and thereby corruptly obstructed, and impeded and endeavored to influence, obstruct, and impede the due proper administration of the law."
The complaint is focused on statements they made in testimony concerning their roles on the Foreign Influence Task Force, and one of its counterintelligence operations known as "Round River," which was focused on collecting derogatory informant reporting on, among other things, Hunter Biden, to flag the reporting as Russian disinformation ahead of the 2020 election.
Floris served as the deputy assistant director of the FITF from mid-2019 through mid-2022, while Benavides served as its section chief from mid-2019 through the 2020 election
The complaint alleges that the defendants made false statements in their testimony "for the purpose of minimizing or concealing FITF's engagement with, and communications about, the Hunter Biden investigations and to impede the Congressional investigation."
During the hearing, Ron Safer, an attorney for Benavides, cross-examined FBI special agent Bryan Witt over his communications with the House Judiciary Committee. Safer asked how he determined whether Benavides' alleged false statements were material to the committee's investigation and could have affected its decision-making.
Witt acknowledged that the FBI was not permitted to directly question committee members or their staff, and that agents instead were required to submit written questions for the record — a method he said he had not experienced before in his career.
He added that he had only interviewed Steve Castor, the general counsel for House Judiciary Committee Republicans, a day before Tuesday's hearing.
"Nobody would know from reading that affidavit that you were limited in any way in your ability to question the staffers about materiality," Safer said.
Prosecutors later told the judge that the FBI was limited in its interactions with the committee because of the Constitution's Speech and Debate clause, which insulates the legislative branch's deliberative process from the executive branch.
When Safer pressed Witt further about the conversation with Castor and the written responses from the staffers, Witt admitted that Castor was not present for Benavides' testimony, nor had he reviewed the transcript. Witt also acknowledged that the staffers who reviewed the questions from the FBI were no longer with the committee, and he did not know if they had reviewed the transcript either.
The hearing is expected to continue on Wednesday.
