A federal magistrate judge has rejected the US Justice Department’s attempt to file new criminal charges against two former FBI counterintelligence officials, ruling that prosecutors could not add the allegations without judicial review.
Judge Zia Faruqui criticised the overnight filing in Washington, which consisted of an unsigned and unsworn superseding criminal complaint. He said it had been placed on the public court docket without first being reviewed to establish whether there was probable cause that a crime had been committed.
Faruqui said the new document would be “struck from the record”, although prosecutors could seek to introduce additional charges through the proper procedure. The docket was later amended to state that the Justice Department’s filings had been entered “in error”.
“We have never had complaints filed that are unsigned,” Faruqui said. “It is inappropriate. It harms the defendants.”
John Borchert, a prosecutor from the US Attorney’s Office in Washington, conceded that attempting to add charges without judicial review was also unprecedented in his experience. He asked whether the FBI agent who filed an affidavit supporting the new complaint could swear to its contents before a hearing on probable cause.
The proposal was opposed by defence lawyers, one of whom described it as “Kafkaesque”. Faruqui compared the suggested process to asking the court simply to act as a notary.
The judge accused the government of making a series of unusual decisions in the case, including the way it had been charged and the appointment of a special assistant US attorney from outside Washington. “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,” Faruqui added.
Mr Borchert replied: “Let me address that squarely. We are not afraid of a probable cause finding.”
Although Faruqui dismissed the superseding complaint, he said a preliminary hearing would proceed on the original complaint against the former officials. That document, which had been reviewed by a magistrate judge, accuses them of lying to Congress.
Allegations against the former FBI officials
The case concerns testimony given by the two defendants to a congressional committee in July and September 2023. The new complaint alleged that they knowingly made materially false statements about their awareness of, and involvement in, FBI investigations into Hunter Biden.
The allegations relate to the FBI’s Foreign Influence Task Force and an operation known as Round River, which involved collecting informant reporting, including material concerning Hunter Biden, and flagging it as Russian disinformation ahead of the 2020 election.
Floris was deputy assistant director of the task force from mid-2019 until mid-2022, while Benavides was its section chief from mid-2019 through the 2020 election. Prosecutors allege that their testimony was intended to minimise or conceal the task force’s involvement in the investigations and impede the congressional inquiry.
During Tuesday’s hearing, Ron Safer, representing Benavides, questioned FBI special agent Bryan Witt about how investigators assessed whether the alleged statements were material to the committee’s work.
Witt acknowledged that agents had not been allowed to question committee members or staff directly. Instead, they submitted written questions, a process he said he had not encountered previously in his career.
He also said he had interviewed Steve Castor, the House Judiciary Committee’s Republican general counsel, only a day before the hearing. Castor had not attended Benavides’s testimony or reviewed the transcript, Witt acknowledged, while the committee staff members who responded to the FBI’s questions were no longer employed there.
Prosecutors said the FBI’s contact with the committee had been limited by the Constitution’s Speech and Debate clause, which protects the legislature’s deliberative process from executive branch interference.
Mary Dohrmann, one of Floris’s lawyers, said the differences between the original and superseding complaints were substantial and raised questions about their accuracy. “The evidence is mounting that this prosecution is about some political football, and not the law or the facts in this case,” she told the court.
The hearing is expected to continue on Wednesday.
