A judge sharply criticized federal prosecutors Tuesday for failing to obtain judicial approval before filing a new criminal complaint overnight against two former FBI officials accused of lying to Congress about investigations into Hunter Biden.
Magistrate Judge Zia Faruqui said he would not approve the new complaint, which added an obstruction charge against Nikki Floris and Bradley Benavides in U.S. District Court in Washington.
“I’m not going to accept it as a replacement complaint,” Faruqui said during a court hearing, after Floris’ lawyers filed a motion arguing that the new complaint was legally deficient and filed in bad faith.
He told prosecutors that if they wanted to file a superseding complaint, a judge should first find probable cause that a crime had been committed, instead of sending him the complaint in the middle of the night and waiting for him to sign it.
Faruqui said he doesn’t believe federal prosecutors have ever sought to file a criminal complaint without a judge’s signature.
“It is not the practice of our court … for unsigned complaints to be filed on the docket,” Faruqui said.
“I’m concerned about your views on what the law is,” the judge told prosecutors. “Why today, on this one case, have you changed the whole story of how you charge for cases?”
The superseding complaint filed by prosecutors from DCUS Attorney Jeanine Pirro’s office in court Tuesday morning contained a signature block with Faruqui’s name typed. But the judge had not personally signed the complaint.
The complaint was filed hours before prosecutors and defense attorneys appeared before Faruqui for a preliminary hearing on the original complaint.
This first complaint, made public last Friday, accuses Floris and Benavides of making false statements to the House Judiciary Committee in 2023 about their involvement in investigations into Hunter Biden, the son of former President Joe Biden.
Floris and Benavides were arrested Friday and released.
The new complaint sought to accuse them of obstruction and attempted obstruction of a congressional proceeding.
Typically, criminal charges for conduct that occurred in the past – as this one alleges – are filed through an indictment, not a criminal complaint. To obtain an indictment, prosecutors must present evidence to a grand jury, which then determines whether the evidence is sufficient to indict a defendant.
A criminal complaint only requires a judge’s signature. It is often used to obtain an arrest warrant in situations where prosecutors need to act quickly.
At Tuesday’s hearing, Faruqui focused on how prosecutors filed charges.
“This case was the subject of a criminal complaint on October 20, for testimony that took place over a period of time in 2023,” he said. “As I have pointed out, and I believe continues to be the case, it is unusual in a matter involving conduct like this to be the subject of a criminal complaint.”
“This needs to go to a grand jury,” Faruqui said.
Under federal rules, prosecutors generally must obtain an indictment within 30 days of a person’s arrest or risk having the case dismissed.
Floris’ lawyers, in an emailed statement to CNBC Tuesday morning, criticized prosecutors’ conduct.
“In the middle of the night, the government filed an unsigned and unsworn complaint, attempting to resolve issues with the original accusation against Ms. Floris and adding a new accusation every bit as baseless as the first,” the lawyers wrote.
“In our combined decades of service at the Department of Justice, we have never seen or even heard of anything like this. That’s because the public filing of criminal charges must be authorized by the grand jury, a judge, or the defendant himself,” they wrote.
“Here, the government has appropriated this power in a desperate attempt to delay our client’s right to contest the charges in court and litigate this matter in the media rather than in court,” they said.
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