A federal magistrate judge on Tuesday sharply rejected the Justice Department’s eleventh-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 investigation. During an intense, multi-hour court hearing, the lead FBI agent assigned to the case also acknowledged that he had worried from the start that the assignment would be seen as political and controversial.
Magistrate Judge Zia Faruqui of the U.S. District Court for the District of Columbia expressed shock and anger at the Justice Department after prosecutors filed an unsworn and unsigned superseding complaint against former FBI officials Bradley Benavides and Nicole Floris shortly after midnight. Faruqui noted that the document had never been submitted to him for a preliminary review to establish probable cause that a crime had been committed.
Filing an unsworn complaint directly onto the public docket while bypassing judicial review is unheard of and raises serious questions regarding the prosecution’s motivations, Faruqui said. He announced that he would order the new charging documents to be struck from the court record, though he noted the Justice Department could attempt to refile them properly.
The public docket was subsequently updated to reflect that the government’s filings had been entered in error. However, the original criminal complaint filed the previous week remains intact, accusing Floris and Benavides of falsely suggesting to the House Judiciary Committee that they were unaware of government investigations surrounding Hunter Biden.
“We have never had complaints filed that are unsigned,” Faruqui said in court, calling the move inappropriate and harmful to the defendants. “I am unaware of that ever happening before in this court. 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 attempting to add fresh charges without prior judicial review in a criminal complaint was a first for him as well. He asked if the judge would permit the FBI agent who signed the supporting affidavit to swear and attest to the filing on the spot, allowing a hearing to immediately determine probable cause.
Defense attorneys quickly balked at the suggestion, with one lawyer describing the maneuver as Kafkaesque. Faruqui compared such a step to acting as a simple notary rather than an independent judicial check, accusing the government of repeatedly making bizarre procedural moves that only intensified concerns.
“Everything you’re doing is making me more and more concerned,” Faruqui 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.” Borchert countered by stating that the government was not afraid of a probable cause finding.
While dismissing the superseding complaint that introduced a new charge of obstructing a congressional proceeding, Faruqui confirmed the court would still move forward with a preliminary hearing to evaluate whether the original criminal complaint met appropriate standards. Mary Dohrmann, an attorney representing Floris, told the court that the substantial changes between the original and attempted superseding complaints demonstrated that the prosecution was driven by politics rather than facts.
The Kansas City-based FBI agent who signed the affidavit, Bryan Witt, faced rigorous cross-examination from defense counsel toward the end of the hearing. Witt testified that the investigation was assigned to him through the bureau’s chain of command in July after FBI Director Kash Patel handed the case to the Kansas City field office.
Witt explained that the inquiry initially centered on a separate 2020 investigation out of the FBI’s Albany field office regarding alleged Chinese election interference, a matter that Republican lawmakers had criticized. Witt admitted that he viewed the assignment as a huge distraction from his regular duties in Kansas City and told colleagues he worried the controversial case would be perceived as political.
The core allegations against Floris and Benavides center on testimony they gave to the House Judiciary Committee on July 19, 2023, and September 28, 2023, respectively. The government alleges the former officials knowingly provided materially false statements regarding their awareness of FBI investigations into Hunter Biden, specifically concerning their work on the Foreign Influence Task Force and an operation known as “Round River” that collected informant reporting ahead of the 2020 election.
During cross-examination by Benavides’ attorney, Ron Safer, Witt acknowledged that federal investigators were not permitted to directly question committee members or staff, instead relying on written questions submitted for the record—a protocol Witt said he had never encountered before. Witt also confirmed he had only interviewed Steve Castor, the general counsel for House Judiciary Committee Republicans, just one day prior to the hearing, and that Castor had neither been present for Benavides’ testimony nor reviewed the transcript.
Prosecutors later explained that direct interactions with the committee were restricted due to the constitutional Speech and Debate Clause, which protects the legislative branch’s deliberative processes from executive intrusion. The preliminary hearing is scheduled to resume on Wednesday.
