FBI agents charged with lying about Hunter Biden probes accuse DOJ of 'serious abuse'
Nikki Floris and Bradley Benavides have been charged with lying to Congress.
A magistrate judge blasted Justice Department attorneys during a hearing Tuesday after the department, in an overnight court filing, added a charge of obstruction to two charges of lying to Congress that were brought Friday against two former FBI agents who investigated Hunter Biden.
The Justice Department on Friday charged Nikki Floris, the former deputy assistant director for FBI's Counterintelligence Division, and Bradley Benavides, another former senior counterintelligence official, with allegedly making false statements to Congress stemming from a probe into whether investigators in the lead-up to the 2020 election sought to suppress or discredit the veracity of material on the laptop of former President Joe Biden's son that included embarrassing photos and videos.
The DOJ early Tuesday added an obstruction of a congressional proceeding charge -- but in a contentious hearing, magistrate Judge Zia Faruqui slammed the Justice Department for the overnight filing, which prosecutors posted to the case docket without receiving signoff from the judge.
The FBI agent who swore out the complaint also did not include his signature.
"I think they should have filed nothing," Judge Faruqui said. "They never had complaints filed on their record that are unsigned, waiting for a judge to make a probable cause finding. I think that it is inappropriate and harms the defendant. I'm frustrated that I got it in the middle of the night, but I'm much more concerned that it's filed on the public record."
The assistant U.S. attorney in the hearing, John Borchert, struggled repeatedly as Faruqui asked him to explain the government's conduct, which the judge said was unlike any case he had ever seen in the history of D.C.'s district court.
Faruqui ultimately granted the request from Flores' and Benavides' attorneys to strike the amended complaint from the docket and said he would continue Tuesday's hearing to determine whether prosecutors established probable cause in their initial complaint filed last week.
"Why today on this one case have you changed the entire history of how you charge cases?" Faruqui asked of Borchert. "What is it? It appears that -- 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.
The Justice Department alleges that Floris and Benavides knowingly lied to Congress on two separate occasions -- on July 19, 2023, for Floris, and on Sept. 28, 2023, for Benavides.
"The evidence further establishes that probable cause exists to believe that Floris and Benavides made these statements for the purpose of minimizing or concealing [the FBI Foreign Influence Task Force's] engagement with, and communications about, the Hunter Biden investigations and to impede the Congressional investigation," according to the documents filed overnight.
The affidavit alleges that both congressional and FBI witnesses, along with FBI documents, prove that the pair were aware of the Hunter Biden investigation.
"The government's last-ditch filing before the pre-scheduled preliminary hearing in this case is not merely procedurally improper and substantively deficient," Floris' attorneys said. "It represents a serious abuse of the criminal charging process, a troubling disregard for the judicial safeguards governing the initiation of criminal proceedings, and a calculated effort to evade judicial scrutiny and shield the government's allegations from adversarial testing at the scheduled preliminary hearing."
"In our combined decades of DOJ service, we have never seen or even heard of something like this being filed. That's because the public lodging of criminal charges must be authorized by the grand jury, a judge, or the defendant herself," the attorneys said. "We have asked to address this outrageous government conduct against a decorated public servant at today's court hearing."
Judge Faruqui appeared on Friday to be skeptical of the charges -- saying the "facts appear to be old" and there are "questions that need to be answered" -- before setting a hearing for Tuesday to consider whether the government established probable cause in its complaint.
Faruqui said the judge who signed off on the complaint needed extra time to determine if there was probable cause or not. "Rare charges" that are "this old" are never charged by complaint, according to the judge.
It was not immediately clear why prosecutors chose to charge the pair through a criminal complaint and not an indictment, which would have required approval by a grand jury instead of a magistrate judge.
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