Judge tears apart DOJ in Hunter Biden laptop case: 'Why are we here?'

A preliminary hearing Tuesday for former FBI agents Nikki Floris and Bradley Benavides, accused of lying to Congress about Hunter Biden’s laptop, quickly became a probable-cause hearing to determine whether the Justice Department had the evidence it claimed in its court complaint against the former FBI agents.

The case is over whether two accused ex-FBI agents misled Congress. But the DOJ's own witness said under oath that he didn’t ask what Congress knew.

The judge was unhappy at the start, hammering the DOJ over why it was there when it hadn't asked a grand jury to review its evidence and decide whether to indict. The Washington, D.C. area has not been friendly to District Attorney Jeanine Pirro's attempted indictments. In February, Politico reported that her office has failed to secure "dozens" of indictments.

Lawfare's Anna Bower transcribed the hearing, in which Magistrate Judge Zia M. Faruqui told the DOJ lawyers it was "unusual" to charge a case with conduct like this by complaint. Essentially, the DOJ is seeking probable cause, which is when a judge decides whether there are enough facts to reasonably believe someone committed a crime, though not necessarily enough to prove them guilty.

The issue for Pirro is that the DOJ often secures an indictment based on testimony from an FBI agent who investigated the case. The DOJ asks the judge to trust that the FBI agent is honest and truthful. After two years under President Donald Trump, however, courts have begun to see indictments that aren't based on evidence.

The DOJ brought in FBI Special Agent Bryan Witt to testify, trusting his testimony.

According to the allegations, Benavides told Senate Judiciary Committee staff in 2023 that he "did not" discuss the FBI's possession of Hunter Biden's laptop with anyone from the FBI's Criminal Division, the affidavits say. The Justice Department alleges that the FBI agents lied. They believe that because the Judiciary Committee staff claimed that the agents were lying.

Ron Safer, Benavides' lawyer, then got Witt to admit under oath that he didn't ask the Senate Judiciary Committee staff what they personally knew at the time about the laptop case.

"But you understand the charges are about misleading the committee? So what the committee knew at the time matters...?" Safer said.

Safer asked Witt to explain why it mattered to the committee’s investigation whether Benavides knew in 2020 that the FBI had a laptop linked to Hunter Biden.

But Witt didn't answer, saying he would have to ask "follow-up questions to staff."

But Safer corrected him, saying that wasn't his question. "My question is, how would Benavides' knowledge about whether the FBI had a laptop attributable to Hunter Biden in any way impact the committee's investigation?"

The DOJ tried to object, but the judge said this question was the very one at the heart of the DOJ's case about whether Floris and Benavides lied. How did the committee know they lied, and how did those lies kill the committee's investigation?

Witt cited a paragraph in the affidavit saying a congressional staffer believed the Benavides' statement was untrue.

The staffer and committee then alleged they relied on Floris and Benavides’ answers for how they proceeded in their investigation. So, their "false answers" significantly influenced the investigation, "thwarting follow-up interviews and subpoenas."

So, Safer pressed Witt on whether the committee already knew, at the time of the next questioning, in 2023, that the FBI possessed a laptop attributed to Hunter Biden. Witt said he did not know.

Safer then pointed to an affidavit quoting “Employee 4,” who said they "would assume" and “certainly say" that Benavides knew the FBI had the laptop. That statement appears to be a big piece of the evidence against the FBI agents.

The key distinction is that Employee 4's statement concerning Benavides’s knowledge was not necessarily the committee’s knowledge as a whole. That person's opinion may not be what members of the Judiciary Committee believed. It also suggests the employee assumed what Benavides knew, rather than explaining how they knew it.

At one point, Safer tried to sort out who knew what and when. Witt testified that the scope of questioning of Judiciary Committee staff was limited. Safer asked whether the judge was informed of that.

"Counsel to the Committee is not like other witnesses," Witt answered.

Safer asked if he addressed that in the affidavit and Witt said he didn't.

That's when the judge chimed in to ask who decided what was and wasn't addressed in the affidavit.

The DOJ jumped in and said there were "speech or debate clause concerns."