Overnight, President Donald Trump’s Justice Department dropped a superseding complaint that now alleges former FBI agents Nikki Floris and Bradley Benavides obstructed justice. When court began, things were expected to get “spicy,” characterized one lawyer.
As Lawfare’s Anna Bower explained, the case began last week when the Justice Department filed a criminal complaint saying that it made false statements to Congress about its involvement in the Hunter Biden laptop investigation.
Floris’ lawyers filed a motion to dismiss after issuing a brutal takedown directed at the DOJ.
Typically, when the DOJ indicts someone, they go to a grand jury, present the evidence and the grand jury decides whether to indict or not. Indictments happen so frequently this way that there’s a running joke that a “grand jury can indict a ham sandwich.” In this case, no grand jury approved an indictment.
Bower explained in her thread that they can file felony charges only with a grand jury indictment.
Tuesday, Magistrate Judge Zia M. Faruqui called a preliminary “probable cause” hearing, which Bower said “often involve cross-examination of government witnesses.” That means the agent who swore on the affidavit that their account was the truth will be called to answer questions.
When the court added the additional complaint overnight, some legal analysts couldn’t help but notice that it was unsigned and unverified.
“An extremely poorly-written superseding complaint affidavit, at that,” complained 21-year federal prosecutor Elizabeth de la Vega.
Moments before the hearing began, a “notice of error” hit the docket saying that it wasn’t adding a “superseding indictment.” Instead, it said, “Filings were entered in error, as this filing is an Amended Complaint, not a Supereeding, and needs to be processed by the Clark’s Office and sworn by the judge before being filed on the docket.”
The same moment that the accidental filing hit, the motion to dismiss also was uploaded to the docket.
Floris’ lawyer made it clear that they took the “accident” seriously, but that they take the case as a whole seriously as well.
“The unsigned, unsworn document reflects an apparent effort by the government to fix deficiencies in their original complaint; switch out the law enforcement officer attesting to the allegations underlying the complaint; and add a second meritless charge under 18 U.S.C. § 1505—another felony that, pursuant to the U.S. Constitution, requires indictment by a grand jury in order to be sustained,” the motion said.
“The government’s last-ditch filing before the pre-scheduled preliminary hearing in this case is not merely procedurally improper and substantively deficient,” the filing added. “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.”