Judge corners Trump DOJ: You’re 'creating a new way of charging people?'

President Donald Trump's Justice Department was in court on Tuesday for a preliminary hearing after the department alleged that former FBI agents Nikki Floris and Bradley Benavides obstructed justice. When court began, things were expected to get "spicy," one lawyer hypothesized.

The hearing began with a quick explanation that the DOJ accidentally filed a superseding indictment overnight. Floris' lawyer had already filed a motion to dismiss.

Lawfare's Anna Bower transcribed the details of the hearing in which Magistrate Judge Zia M. Faruqui told the DOJ lawyers that it was "unusual" to charge a case with conduct like this by complaint. Bower paraphrased the judge saying, "usually it's when there's some danger of release/threat that you would do complaint first."

Faruqui told the DOJ that he has never had a situation like this in his career as a magistrate.

"We've never had complaints filed on the record unsigned while waiting for judge to make probable cause finding," he said.

Floris' lawyer Mary Dohrmann came out swinging, calling the whole case a "political football" and alleging that it had nothing to do with the facts or the law. Dohrmann is the principal of the Washington Litigation Group, which has represented many of the former DOJ lawyers and fired FBI agents in suits against the agencies or defended them against retaliation from the administration.

"Whether incompetence or simply cruelty, it's inexcusable to comply with the most basic requirement that complaint be sworn ... Raises serious concerns about credibility of the government's case," said Dohrmann.

"The second complaint is even more inaccurate than the first," she said. "There are changes in the facts, suggesting that there's Brady material that came to government's attention. Clerk's office has struck the complaint. But we ask that court take this conduct into consideration for probable cause determination," she added.

The Justice Department explained that it was trying to file a superseding complaint, and confessed, "I had not done this before."

The judge asked whether any other cases in the district had sought a superseding complaint without a probable cause finding, and the DOJ lawyer said they were not aware of any.

"So, to be clear, your view is that a superseding indictment could be filed adding new charges, and there's no requirement for probable cause, unless an arrest warrant is being sought?" the judge asked, according to Bower. The DOJ agreed.

However, the DOJ contends that the preliminary filing would require a grand jury's approval or a probable cause hearing.

The judge didn't appear to be happy: "So DOJ is now essentially creating a new way of charging people? This is very concerning."

The judge called it an example of "throwing gasoline on what defendants are saying about this being unusual."

"Why would you not just want a magistrate judge to make a probable cause finding as you would in every other case?" the judge asked. "Why today on this one case are you, the United States, changing the way it has done things in its entire history?"

The DOJ said it was ready for a probable cause hearing and had the witness available, but the judge took issue with the comment.

"But what do you suggest the PC hearing is on today? The defense is saying there are facts that were changed from first to second," Judge Faruqui said, according to Bower's accounting.

"There likely are some things like that, your honor. There's a delta between the two because there are facts that go to the obstruction count," said the DOJ. "We think that here today we can swear out the complaint and proceed to preliminary hearing..."

The judge made it clear they were "reluctant to do" that given "what you've said your view is of what my signing that complaint would mean ... the idea that the magistrate judge just rubber stamps it without a probable cause determination."

Ron Safer, Benavides' lawyer, said they were fine going to the first complaint.

So the judge called up the witness.