Judge dismisses the complaint against two ex-FBI officials, finding no probable cause they lied to Congress

U.S. Magistrate Judge Zia Faruqui dismissed the criminal complaint against former FBI officials Nikki Floris and Bradley Benavides on Monday, November 2, finding that prosecutors had not shown probable cause that either of them lied to Congress.

CBS News reported that Faruqui spoke for about an hour and said the complaint lacked probable cause. Each defendant had faced one count of lying to Congress. The complaint said they gave the committee a false picture in 2023 of what they knew about the bureau's Hunter Biden investigations. A second charge, obstruction of a congressional proceeding, had been added days earlier. Faruqui dismissed that too.

How the case came apart in a week

The government charged the pair by criminal complaint, which needs a judge's signature, and not by indictment, which needs a grand jury. The complaint was filed October 20, the judge said, and made public October 23, the day Floris and Benavides were arrested and released. Conduct from years ago is normally charged by indictment, CNBC noted, and prosecutors generally must obtain one within 30 days of an arrest or risk dismissal.

At an October 27 preliminary hearing, Faruqui refused to accept a new complaint that prosecutors in U.S. Attorney Jeanine Pirro's office had put on the docket overnight. It carried a signature block with his name typed in. He had not signed it. "I am not going to bless it as a superseding complaint," he said, and he told prosecutors the case "has to get to a grand jury." Floris's lawyers had moved to strike the filing, calling it "a serious abuse of the criminal charging process."

Testimony that week added to the problem. An FBI agent who worked the case testified that he worried the investigation would be seen as "political," NBC News reported. NBC also reported that the agent acknowledged a prosecutor, Carlton Davis, had called the complaint "flawed" in a phone call. Davis is a top aide to Pirro. MS NOW identified a veteran agent, Bryan Witt, as testifying about the part FBI Director Kash Patel played in opening the case.

What the judge said about timing

The ruling went past procedure. "What has transpired here cannot be described as anything other than weaponization," Faruqui said, according to BayNews9. He noted that the investigation opened a day after a primetime speech by President Trump revisiting his 2020 election loss, and that the Justice Department filed about two weeks before the midterms. "I will not bury my head in the sand and pretend that I cannot read a calendar," he said. CBS reported he told the courtroom the case "erodes public confidence in the Department of Justice."

The Justice Department has not commented in any of the coverage reviewed. Pirro's office did not immediately answer NBC's request. The department's side of the argument, then, is limited to what it put in its filings, and those were not available for this report. This report runs on secondary coverage. The primary record is the judge's oral ruling, and no written order was available at the time of writing.

What happens next

The next step is a grand jury, if prosecutors want one. NBC noted that D.C. jurors have rejected politically charged cases before, most recently an attempted indictment of Cassidy Hutchinson, and that a new case "seems unlikely" after Faruqui's finding. That is NBC's read, not a legal rule. A grand jury would make its own probable cause call.

Attorneys for Benavides called the accusations "political theater" and said they hoped the government would not go to a grand jury "behind closed doors." Outside the courtroom, CBS reported, Floris and Benavides embraced and cried. Former Acting FBI Director Brian Driscoll was among the former bureau leaders with them.

Both defendants had been targets of criticism from allies of the president. Floris was a deputy assistant director in the FBI's Counterintelligence Division, MS NOW reported, and the two had briefed Congress in 2020 on the laptop's contents. Sens. Chuck Grassley and Ron Johnson have said that briefing was used to undermine their own inquiry. BayNews9 reported that the Justice Department also cited that 2020 briefing in the case.