Overnight, President Donald Trump’s Justice Department filed a document alleging that former FBI agents Nikki Floris and Bradley Benavides obstructed justice. The filing prompted anticipation of a “spicy” hearing, as one lawyer described it. The department later said the document had been entered in error. The late-night mix-up put an unusually bright spotlight on the procedural safeguards that govern how federal criminal charges can be brought in the first place.

As Lawfare’s Anna Bower explained in a thread on X, the case began the previous week when the Justice Department filed a criminal complaint alleging that Floris and Benavides made false statements to Congress about their involvement in the Hunter Biden laptop investigation. Floris’ lawyers subsequently filed a motion to dismiss, including a forceful criticism of the DOJ.

Ordinarily, federal prosecutors seeking to indict someone present evidence to a grand jury, which decides whether to return an indictment. The process occurs so frequently that there is a longstanding joke that “a grand jury can indict a ham sandwich.” In this case, however, no grand jury had approved an indictment. Bower said in another post that felony charges can be filed only through a grand jury indictment. The terminology carries weight: a superseding indictment is a new charging document that replaces an earlier one, and because felony charges rest on a grand jury’s vote, any filing described in those terms invites immediate scrutiny over where it originated.

On Tuesday, Magistrate Judge Zia M. Faruqui scheduled a preliminary “probable cause” hearing. Such hearings “often involve cross-examination of government witnesses,” Bower wrote, meaning that the agent who swore in an affidavit that the allegations were true could be questioned under oath. That prospect made the hearing an early checkpoint at which the government’s evidence would face adversarial testing.

When the court docket was updated overnight with the additional complaint, legal analysts noted that the document was unsigned and unverified. “An extremely poorly-written superseding complaint affidavit, at that,” 21-year federal prosecutor Elizabeth de la Vega wrote. The missing signature mattered because charging documents ordinarily rest on a sworn attestation, leaving the new allegations without the verification step that normally anchors them.

Minutes before the hearing began, a “notice of error” was filed on the docket. It stated that the document was not a “superseding indictment,” but rather an amended complaint that needed to be processed by the Clerk’s Office and sworn by the judge before being filed. The notice said: “Filings were entered in error, as this filing is an Amended Complaint, not a Supereeding, and needs to be processed by the Clark's Office and sworn by the judge before being filed on the docket.”

The motion to dismiss was uploaded to the docket at roughly the same time. In the filing, Floris’ lawyer said the defense took the alleged “accident” seriously, while also emphasizing that it viewed the case as a whole as serious. The second count cited in the motion, 18 U.S.C. § 1505, is the federal obstruction statute covering corrupt interference with proceedings and inquiries involving Congress and federal agencies. The motion stated:

“The unsigned, unsworn document reflects an apparent effort by the government to fix deficiencies in their original complaint; switch out the law enforcement officer attesting to the allegations underlying the complaint; and add a second meritless charge under 18 U.S.C. § 1505—another felony that, pursuant to the U.S. Constitution, requires indictment by a grand jury in order to be sustained.”

The motion continued: “The government’s last-ditch filing before the pre-scheduled preliminary hearing in this case is not merely procedurally improper and substantively deficient. It represents a serious abuse of the criminal charging process, a troubling disregard for the judicial safeguards governing the initiation of criminal proceedings, and a calculated effort to evade judicial scrutiny and shield the government’s allegations from adversarial testing at the scheduled preliminary hearing.”

Attention now turns to the docket: whether the amended complaint is properly processed through the Clerk’s Office and sworn before it is filed, how the court addresses the pending motion to dismiss, and whether the preliminary hearing before Judge Faruqui moves forward as scheduled.