Defense lawyers seek to poke holes in DOJ's case against ex-FBI officials over Hunter Biden probe

A criminal case charging two former FBI counterintelligence officials with lying to Congress that was directed by Director Kash Patel could be in jeopardy, after defense attorneys raised doubts about the strength of the evidence and the motives behind the charges.

In a two-day hearing in federal court in Washington, D.C., lawyers for Nikki Floris and Bradley Benavides grilled FBI agent Bryan Witt about the details of the investigation, including its origins and what evidence the FBI had to assert that the pair willfully lied to the House Judiciary Committee about their role in the bureau's various Hunter Biden investigations.

U.S. Magistrate Judge Zia Faruqui said he wants to review the charging document and go line by line through each of the alleged false statements to see if there is probable cause that a crime was committed. 

That review process is expected to take place on Thursday.

On the stand, Witt acknowledged that FBI agents did not interview certain key witnesses — including Floris herself or any congressional staff with direct knowledge about their testimony before the House Judiciary Committee.

Witt told defense attorneys on Tuesday that he feels confident in the veracity of the allegations against Benavides and Floris.

The defense lawyers also raised pointed questions intended to cast doubt on whether their clients actually made false statements, fleshing out the context of each question and noting how some of them lacked the specificity that would normally be needed in order for the government to prevail at trial in a false statements case.

When Floris, who did not work on criminal cases, was asked whether she was involved in the Hunter Biden "investigation," for example, the questioner did not specify which investigation — even though Witt acknowledged there were multiple different criminal and counterintelligence investigations involving Hunter Biden.

"Which investigation is she responding to?" Floris' attorney Margaret Donovan asked. 

Witt said it was "probably" the FBI's criminal investigation out of the Baltimore field office.

"For her to give a false statement, you need to have an understanding of what the question is that she was responding to," Donovan replied.

Although Floris and Benavides were not part of the investigative team in Baltimore, the government alleges that they spoke with the team before they provided a defensive briefing on possible Russian disinformation to Sens. Chuck Grassley and Ron Johnson.

The criminal case against Floris and Benavides has been highly unusual since it first came to light last week.

Prosecutors charged the pair in a criminal complaint, a charging document that is customarily only used in felony cases that pose exigent public safety or national security threats, rather than securing a grand jury indictment. 

After midnight on the eve of the court hearing's first day Tuesday, prosecutors sought to add new charges of obstructing Congress with an unsigned and unsworn superseding complaint — a maneuver the magistrate judge said was improper and unheard of. 

The magistrate struck the superseding complaint from the record, saying it lacked proper judicial review.  But he allowed the hearing on the original complaint to proceed.

Defense lawyers, meanwhile, identified discrepancies between the two versions of the complaint, such as whether a key congressional staffer was an eyewitness when Floris and Benavides testified. 

As it turned out, the staffer — House Judiciary Committee Republican Counsel Steve Castor — was not present for the testimony nor had he reviewed the transcript, Witt later admitted.

He also acknowledged that agents were not permitted to interview any other congressional staffers for the case, an issue that defense attorneys said raises concerns about whether the alleged false statements were material to the congressional investigation.

"Did you approach any Democrats for their view on materiality?" Donovan asked.

"Absolutely not," Witt said, adding that agents were instructed to submit written questions only.

"Do you understand there is a general counsel for the Democrats?" Donovan asked.

"No one explained to me the partisanship nature" of the committee, Witt said.

Prosecutors told the judge on Tuesday that the FBI was limited in its interactions with the committee because of the Constitution's Speech and Debate clause, which insulates the legislative branch's deliberative process from the executive branch.

In a stunning admission, Witt acknowledged that Patel told his supervisor in the Kansas City field office to open the investigation, just one day after President Trump gave a televised speech where he directed the Justice Department to look at an alleged cover-up by intelligence officials related to efforts by China to interfere in the 2020 election.

The White House released a trove of classified records in conjunction with the speech, some of which showed that Floris had played a role in recalling a classified report prepared by an analyst in the Albany field office alleging that China produced fraudulent drivers licenses to manufacture mail-in votes amid concerns about the source's credibility.

Witt testified that he was initially directed to investigate the former FBI officials to see if they suppressed evidence about China.

But the investigation, which Witt told defense lawyers he feared might be viewed as "political," later shifted after agents began reviewing transcripts of testimony that Benavides and Floris provided to the House Judiciary Committee in 2023.

The involvement of Patel, whom defense attorney Margaret Donovan said had effectively "injected himself as a witness and almost a case agent" into the investigation, marked the latest in a string of oddities.

Witt on Wednesday testified that both Patel and the deputy director of the FBI were "closely monitoring our progress" on the case, and that he and his coworkers would "routinely" provide updates to FBI headquarters.

In at least two instances, he said Patel participated with the case team on video conferences and FBI deputy directors also visited the Kansas City field office in person.

Prosecutors later told the magistrate judge that the testimony about the origins of the case was not relevant to a probable cause finding, saying those kinds of issues could be raised at a later time.

"This has gone a little bit far astray from the limited purpose of this hearing," prosecutor Cory Jacobs said, adding that he feared it was "hard to unring that bell."