6 minPolitics
Judge rebukes DOJ for filing new charges against ex-FBI officials without court approval
Magistrate Judge Zia Faruqui criticized the Justice Department for filing a superseding complaint with new obstruction charges against former FBI officials Nikki Floris and Bradley Benavides without first obtaining judicial approval.
A federal magistrate judge sharply rebuked the Justice Department on Tuesday after prosecutors attempted to add new obstruction charges against two former FBI officials without first securing judicial approval. U.S. Magistrate Judge Zia M. Faruqui said the filing was inappropriate and harmful to the defendants, and he made clear he would not accept it as presented.
Former FBI officials Nikki Floris and Bradley Benavides were arrested last week after the Department of Justice accused them of misrepresenting their involvement in investigations concerning Hunter Biden, son of former President Joe Biden, in statements to Congress. Hours before prosecutors were due to defend their original allegations at a preliminary hearing, where the government must establish probable cause, the DOJ filed a superseding criminal complaint. The new filing added felony obstruction allegations while softening some of the language used to describe the officials' roles.
In the superseding complaint, prosecutors described Benavides and Floris as having been "involved in" the Foreign Influence Task Force's work concerning Hunter Biden, a softer characterization than the original complaint's suggestion that they had been at the "center" of those activities. Floris, previously said to have been involved in "scores of conversations" related to the younger Biden, is now accused only of participating in "conversations." Floris's lawyers argued that these changes in wording call into question the factual basis of the government's case.
Faruqui objected most strongly to the procedure. The complaint was unsigned and unsworn, and it was filed in the middle of the night without a judge's prior review. "I think they should have filed nothing," he said, according to reports from the courtroom. "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." He added that he was frustrated to receive the filing overnight but was more concerned that it had been placed on the public record.
Asking the government why it had departed from its usual practice, the judge said, "Why today on this one case have you changed the entire history of how you charge cases?" He added, "It appears that – it makes it look like the United States is afraid of me trying to find probable cause." John Borchert, a prosecutor from the U.S. Attorney's Office in Washington, D.C., told the court it was the first time he had filed new charges against someone without going through judicial review.
Faruqui rejected the superseding complaint because prosecutors had not obtained the required judicial authorization. The preliminary hearing was allowed to proceed on the original allegations that Floris and Benavides lied to Congress. In remarks that may have referred to recently unsealed charges against former FBI Director James Comey, the judge said moving forward on a superseding complaint without a probable cause finding would be like charging someone by information in a complaint setting. "If you want a superseding complaint, like every other case that's happened in this district, we will have a judge make a probable cause finding," he said. "Not send me something in the middle of the night and expect that it gets done."
The dispute has drawn attention to the timing of the case. Midterm elections were only days away when news of the two former officials' arrests broke, and critics have questioned whether the timing was deliberate. Floris's legal team issued a statement to CBS News that said the government had "filed an unsigned and unsworn complaint attempting to fix the issues with their original charge" and added a new charge "just as meritless as the first one." The lawyers said that in their combined decades of Justice Department service they had never seen or heard of such a filing, and they argued that the government had taken for itself a power that belongs to a grand jury, a judge or the defendant.
Faruqui has faced criticism from conservatives in the past over his support for diversity, equity and inclusion initiatives, his criticism of Immigration and Customs Enforcement, and his positions on pretrial detention. He also drew backlash after apologizing to Cole Allen, the man accused of attempting to assassinate President Donald Trump at the 2026 White House Correspondents' Association Dinner, and after criticizing the government's use of five-point restraints against him. At an earlier hearing, the judge said it was "extremely disturbing that he was put in five-point restraints, a person with no criminal history."
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