President Donald Trump's Justice Department faced pointed questioning from a federal magistrate judge on Tuesday during a preliminary hearing in the case against two former FBI agents, Nikki Floris and Bradley Benavides, whom the department has accused of obstructing justice.

The proceeding opened with an unexpected admission: the DOJ had accidentally filed a superseding indictment overnight. By that point, Floris's attorney had already moved to dismiss the case. Expectations inside the courtroom were that things could get "spicy," one lawyer hypothesized.

A superseding filing replaces an earlier charging document in a case, and the overnight mix-up set up much of what followed.

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."

Under standard federal practice, a criminal complaint must be supported by a sworn statement and reviewed by a magistrate judge for probable cause — an early judicial checkpoint that prosecutors typically use when charges need to be filed before a grand jury can act.

Faruqui told the DOJ that he had never encountered 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's 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 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," Dohrmann said.

"The second complaint is even more inaccurate than the first," she added. "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."

Brady material refers to evidence favorable to a defendant that prosecutors are required to disclose under the Supreme Court's 1963 ruling in Brady v. Maryland — the kind of discrepancy Dohrmann argued the court should weigh in its probable cause determination.

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

The judge asked whether any other case 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.

The department nevertheless contended that the preliminary filing would ultimately require either a grand jury's approval or a probable cause hearing.

The judge did not appear satisfied. "So DOJ is now essentially creating a new way of charging people? This is very concerning," Faruqui said, calling the approach 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 a witness available, but the judge took issue with that framing. "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," the DOJ responded. "We think that here today we can swear out the complaint and proceed to preliminary hearing..."

The judge made clear he was "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's lawyer, said they were fine proceeding on the first complaint. The judge then called up the witness.

Toward the end of the hearing, Floris's lawyer was able to get the witness to explain that the instructions to go after the two agents came from FBI Director Kash Patel, after the president's speech complaining he was robbed from winning the 2020 election.

How Faruqui rules on the probable cause question — and on Floris's already-filed motion to dismiss — will shape the case's next steps, with DOJ lawyers maintaining the charges ultimately require either a grand jury's approval or a probable cause hearing to proceed.