A judge on Tuesday sharply criticized federal prosecutors for failing to get judicial approval before filing a new criminal complaint overnight against two ex-FBI officials accused of lying to Congress about investigations of Hunter Biden.
Magistrate Judge Zia Faruqui said he would not sign off on the new complaint, which added a charge of obstruction against Nikki Floris and Bradley Benavides in U.S. District Court in Washington.
“I am not going to bless it as a superseding complaint,” Faruqui said at a court hearing, after Floris’ lawyers filed a motion arguing 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 first would have to find probable cause that a crime had been committed, instead of sending him the complaint in the middle of the night and expecting him to sign it.
Faruqui said he did not believe that federal prosecutors had previously sought to file a criminal complaint without a judge’s signature.
“It is not our court’s practice … that unsigned complaints are filed in the docket,” Faruqui said.
“I’m concerned with your view as to what the law is,” the judge told the prosecutors. “Why today, on this one case, have you changed the entire history of how you charge cases?”
The superseding complaint that prosecutors in the office of D.C. U.S. Attorney Jeanine Pirro filed in court early Tuesday contained a signature block with Faruqui’s name typed out. But the judge had not personally signed the complaint.
It was filed hours before prosecutors and defense lawyers were due to appear before Faruqui for a preliminary hearing on the original complaint.
That 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 of Hunter Biden, the son of former President Joe Biden.
Floris and Benavides were arrested Friday and have been released.
The new complaint sought to charge them with obstruction and attempted obstruction of a congressional proceeding.
Typically, criminal cases for conduct that occurred well in the past — as this one alleges — are lodged 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 charge 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 move quickly.
At Tuesday’s hearing, Faruqui homed in on the way prosecutors filed charges.
“This case was charged by criminal complaint on Oct. 20, for testimony that occurred over a period of time in 2023,” he said. “As I noted, and I think it continues to be the case, that it’s unusual in a case that has conduct like this to be charged by criminal complaint.”
“This has to get 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 the case being dismissed.
Floris’ lawyers, in an emailed statement to CNBC on Tuesday morning, criticized the prosecutors’ conduct.
“In the middle of the night, the government filed an unsigned and unsworn complaint attempting to fix the issues with their original charge against Ms. Floris and adding a new charge just as meritless as the first one,” the attorneys wrote.
“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,” they wrote.
“Here, the government has taken that power for itself in a desperate attempt to delay our client’s right to challenge the charges in court and litigate this case in the media, rather than the courtroom,” they said.