The Justice Department Forgot the Judge

The Justice Department remembered to put the judge’s name on its new criminal complaint. It just hadn’t obtained his signature. Filed overnight before an October 27 hearing, the document added an obstruction charge against former FBI officials Nikki Floris and Bradley Benavides. U.S. Magistrate Judge Zia M. Faruqui declined to let the typed version of himself authorize an added charge. The actual judge struck the amended complaint from the record.

The case is in federal district court in Washington. The original complaint, signed October 20 by Magistrate Judge Matthew J. Sharbaugh, charged false statements to Congress. Prosecutors allege the two former counterintelligence officials misrepresented their knowledge of and involvement in investigations concerning Hunter Biden when the House Judiciary Committee interviewed them in 2023. Both deny wrongdoing. These are criminal allegations, not findings that either person lied.

The new document called itself a “Superseding Criminal Complaint” and added obstruction and attempted obstruction of a congressional proceeding under 18 U.S.C. § 1505. It was not a grand-jury indictment. Faruqui’s name appeared below a blank signature line; the complainant’s signature line was blank, too. The clerk’s notice said the filing was an amended complaint that needed processing and judicial swearing before it went onto the docket. Even the paperwork had to be told what kind of paperwork it was.

DOJ had an argument, not merely an empty signature box. Prosecutor John Borchert said advance judicial approval was unnecessary under the rules because Floris and Benavides had already been charged and appeared in court. He suggested the complaint could be signed at the hearing. That is the department’s strongest reported procedural defense: an existing case, in its view, did not require another advance sign-off. Faruqui rejected it. Asked for a previous example of a complaint docketed without judicial approval, Borchert could not provide one.

Rule 3 requires a complaint under oath before a judicial officer, with an exception for the remote procedure in Rule 4.1. That procedure still requires the judge to administer an oath. Faruqui said a new complaint needed a probable-cause determination first. Electronic filing had apparently made everything convenient except the part where the court participates.

Tuesday’s ruling did not dismiss the entire prosecution or establish anyone’s innocence. The hearing on the original complaint continued; reporting that evening said it would resume Wednesday. The government still had allegations to present and the defense still had allegations to contest. Court time was instead being spent explaining how to get the accusation properly before the court.

Announcing the original charges, U.S. Attorney Jeanine Pirro promised to “bring the hammer of justice down on” the defendants and declared that “no one is above the law.” Prosecutors can pursue that principle without treating judicial review as a finishing touch. Before the department brings down its hammer, someone might check whether the judge has authorized the swing.