Judge Strikes DOJ's Unsigned Overnight Complaint Against Two Ex-FBI Officials in Hunter Biden Case

Since Floris and Benavides surrendered on Friday, Oct. 23, on charges of lying to Congress about the FBI's Hunter Biden investigations, the case has turned on how prosecutors brought it, not just what the two are accused of. On Tuesday, Oct. 27, the procedure took over the courtroom.

Magistrate Judge Zia Faruqui of the U.S. District Court for the District of Columbia said he would order a superseding complaint struck from the record. The Justice Department filed it after midnight, unsigned and unsworn, on the public docket. Faruqui never reviewed it to determine whether it showed probable cause.

The docket was later updated to say the filings were entered "in error." The original complaint, filed last week, is intact.

What the judge said

Faruqui did not hide his irritation. "We have never had complaints filed that are unsigned," he said, calling the move "inappropriate" and saying it "harms the defendants."

"I am unaware of that ever happening before in this court," he said. "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."

He said filing an unsworn complaint publicly and bypassing judicial review is unheard of and raises questions about the Justice Department's motivations. He also asked: "Why today on this one case have you changed the entire history of how you charge cases?"

Prosecutor John Borchert of the U.S. Attorney's Office in Washington conceded the maneuver was a first for him too. He asked whether the FBI agent who wrote the supporting affidavit could swear to it on the spot so a probable-cause hearing could proceed. Defense lawyers refused. One called the idea "Kafkaesque." Faruqui compared it to acting as a notary.

The judge also criticized how the case was charged and the decision to bring in a special assistant U.S. attorney from out of town. "Everything you're doing is making me more and more concerned," he said.

The new charge and the agent's testimony

The overnight filing added an obstruction charge. It alleged the former officials' false statements let them avoid questioning about their knowledge of Hunter Biden and impeded a House investigation of the Biden family. Fox News reported it also softened some of the language prosecutors had used to describe the pair's involvement in the Hunter Biden investigations.

Floris's lawyers said the government tried "to fix the issues with their original charge" and added a new one "just as meritless as the first." "In our combined decades of DOJ service, we have never seen or even heard of something like this being filed," they said.

The FBI agent assigned to the investigation also testified. Under questioning from a defense attorney, he acknowledged that when he was put on the case over the summer, he worried it could be seen as "controversial" and "political."

The underlying allegations

The original complaint charges each defendant with one count of making false statements in a matter within the jurisdiction of the legislative branch, under 18 U.S.C. § 1001(a)(2). Each faces up to five years in prison if convicted.

According to the Justice Department, Floris led the FBI's Foreign Influence Task Force from mid-2019 to mid-2022. Benavides was its section chief from mid-2019 through the 2020 election. Floris was interviewed by the House Judiciary Committee on July 19, 2023, and Benavides on Sept. 28, 2023.

Prosecutors say Floris told the committee she was involved in no discussions about Hunter Biden while at the task force. They say Benavides testified he learned of the FBI's possession of the laptop only by reading a Wikipedia article in 2023.

An affidavit from FBI special agent Byron Miletello says documentary evidence, contemporaneous communications and witness accounts contradict that testimony. The charging documents allege Floris communicated frequently with the team investigating Hunter Biden for more than a year and circulated a Senate report from Sens. Ron Johnson and Chuck Grassley the morning it was released. They allege Benavides discussed the New York Post laptop story the day it was published.

"Lying to Congress by anyone strikes at the heart of our democratic system," U.S. Attorney Jeanine Pirro said, "but when senior FBI agents lie to Congress believing they are above the law, it's time to bring the hammer of justice down on them." FBI Director Kash Patel said: "No one is above the law."

These are allegations. Neither defendant has been convicted.

The defense

Floris's lawyers call her "a patriot" who served nearly 20 years as an FBI intelligence officer. They say the Justice Department accused her "falsely of a crime on the say-so of politicians, not on the facts," and that it is "no coincidence the government is filing these nonsense charges now, years later, on the eve of an election."

Ron Safer, representing Benavides, has pressed for a prompt hearing. "The alleged conduct happened years ago," he said. "The government has had the information about this for years."

The Justice Department's actions in the run-up to the midterms, which are next week, are part of a pattern, according to the Associated Press. It described the case as one of a series of politically charged investigative actions and as a Trump administration broadside against the disbanded task force. Congressional Republicans have long said the task force tried to discredit their own investigations into the Biden family.

What comes next

The preliminary hearing, where the government must establish probable cause on the original allegations, is the next test. The case was charged by a complaint signed by a magistrate judge, not an indictment voted on by a grand jury.

The Justice Department can still try to add the obstruction charge the proper way. That would mean either a sworn complaint reviewed by Faruqui or a felony indictment. According to the AP, the department has repeatedly struggled to persuade D.C. grand juries to return indictments in high-profile cases. Whether prosecutors go to a grand jury before Election Day is the open question.