DOJ Criminal Complaint Against Former FBI Supervisors
Author: Solomon L. Wisenberg, FBFK Shareholder, Chief of Our White Collar Practice, and Former Deputy Independent Counsel.
It is not every day that FBI Special Agents (or senior management officials) get charged with felonies by the federal government. In fact, it is an extraordinarily rare occurrence. And when it happens, the charged offenses typically involve espionage or major financial crimes. But last week, the DOJ charged two former FBI senior managers, Nicole Floris and Bradley Benavides, with lying to the House Judiciary Committee in 2023 about their “awareness of and involvement in” the Bureau’s investigation into Hunter Biden’s laptop. According to the Criminal Complaint, the Judiciary Committee was investigating the FBI’s handling of “the Hunter Biden investigations and related issues.” Here are five takeaways from these remarkable charges.
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THE ALLEGED MOTIVE IS KEY TO THE CHARGES.
In most cases, prosecutors are not legally required to prove a defendant’s motive. But juries are always interested in knowing why somebody would commit a crime. According to the Complaint, the defendants were motivated by a desire to impede the Congressional investigation and conceal the FBI’s “engagement with and communications about the Hunter Biden investigation.” The laptop contained extremely damaging information about Hunter Biden’s influence-peddling activities. The Biden Campaign, aided by the several media outlets and 51 former intelligence officers, portrayed the laptop’s contents as likely Russian disinformation. But it turned out that the laptop was real. And the FBI knew it was real by October 2020 yet failed to refute the Biden Campaign narrative. The Defendants worked for the FBI’s Foreign Influence Task Force (“FITF”). The FITF was disbanded in 2025, after Donald Trump’s Second Inauguration. -
THE COMPLAINT IS VERY DETAILED.
The alleged crime is knowingly and willfully making materially false statements in a matter within the jurisdiction of the legislative branch. The Statement of Facts portion of the Complaint, sworn to by FBI Special Agent Byron Militello, is 27 pages long and contains significant evidentiary material. It is clearly sufficient on its face to allege an offense. Indeed, the Magistrate Judge would not have otherwise issued the arrest warrant. If an Indictment that tracks this Complaint is returned by the DC grand jury there will be no need to allege additional facts. Such an Indictment will easily withstand a motion to dismiss for failure to allege an offense. This brings up a question. -
WHY DID THE GOVERNMENT GO THE COMPLAINT ROUTE?
Why didn’t DOJ instead ask the DC grand jury to return an Indictment? After all, there was no need to rush out a Criminal Complaint. The allegedly false testimony was given three years ago about events that are six years old. The Defendants are not a flight risk or a danger to the community. They aren’t going anywhere, nor will they intimidate any witnesses. And there are usually several federal grand juries sitting in DC at any given time. I think the answer to this question is simple. -
THE GOVERNMENT DID NOT WANT TO RUN THE RISK THAT A DC GRAND JURY WOULD REFUSE TO RETURN AN INDICTMENT.
There is a real possibility this will happen, as DC grand juries (and trial juries as well) have generally been quite hostile to political cases brought by the Trump Administration. By initially charging via Criminal Complaint, the Government gets its story out to the public and controls the timing. Even if the Grand Jury fails to return an Indictment, the Complaint, and the evidence it cites, will still be there for everyone to see— two weeks before the hotly contested midterm elections. A cynical person might question the timing. And the Trump Administration can always say: “We had the goods on the bad guys, but the rogue DC grand jury was biased against us.” -
WHAT IS THE DEFENSE STRATEGY?
The Defendants want to clear their names as soon as possible. Under the Speedy Trial Act, the Government has 30 days to indict the Defendants or dismiss the charges against them. But under the Federal Rules of Criminal Procedure, a defendant has the right to a Preliminary Hearing if no Indictment has been returned. Floris and Benavides asked for an immediate preliminary hearing, but the prosecutors asked for a few more weeks. The Defendants won this argument, and the Preliminary Hearing is now set for this Tuesday, October 27. The defense will be able to cross-examine Government witnesses and introduce evidence. But remember, the Government only has to establish probable cause to believe that the Defendants committed the charged offense—not proof beyond a reasonable doubt. If the Defendants prevail, the Magistrate Judge must dismiss the Complaint and discharge the Defendants—a major defeat for Trump’s DOJ. (The Government will still be free to charge the Defendants for the same crime at a later date.) If the Government prevails and establishes probable cause, the court will require the Defendants to appear for future proceedings. But the Government must still indict within 30 days of the original Complaint.
Tuesday’s Preliminary Hearing should prove to be eye-opening. I do not expect the Defendants to prevail, but they may be able to establish favorable facts in the court of public opinion. Stay tuned.