FBI Agents Charged Over Lying to Congress: A Hearing Diary

COMING UP: Preliminary hearing before magistrate judge Faruqui in the criminal case of former FBI agents charged with false statements to Congress and obstruction. Things could get very interesting... I'm here in the media room for @lawfaremedia.org. Follow along!

While you were sleeping: DOJ files superseding complaint, adds obstruction counts in case against former FBI agents Nikki Floris and Bradley Benavides Preliminary hearing set for today at 11 am. storage.courtlistener.com

BACKGROUND: Last week, DOJ filed a criminal complaint against former FBI agents Bradley Benavides and Nikki Floris. Complaint alleges that they misled Congress by making false statements about their alleged involvement in the Hunter Biden laptop investigation. courtlistener.com

Notably, DOJ didn't obtain a grand jury indictment -- which it eventually must do for felony charges.

Magistrate judge set a "preliminary hearing" -- AKA a probable cause hearing -- to determine whether there's probable cause to refer the case to a grand jury.

If no PC --> complaint dismissed...

Preliminary hearings often involve cross examination of government witnesses or the agent who swore out the affidavit supporting the complaint.

Last night, on the eve of this hearing, DOJ filed a *new* affidavit purporting to support a "superseding complaint."

The complaint added obstruction counts against Floris and Benavides...

But, weirdly, the affidavit was unsworn.

And it was by a different FBI agent.

And the case is in DC, with the predicate acts all occurring in DC, but the agent is based in Phoenix

storage.courtlistener.com

So that's how we got here.

Now we're waiting for magistrate judge Faruqui. (In this thread I'll refer to him as MJ or judge for shorthand.)

Bryan Witt -- the FBI agent whose name is listed on last night's affidavit -- is in the courtroom.

So we could hear testimony from him today. We'll see.

While we wait for things to get started....

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Hearing was supposed to start at 11 am.

Defense counsel was present at scheduled start time.

So was FBI agent Bryan Witt (who was listed on affidavit for superseding complaint).

But Witt said he was waiting on 3 DOJ attorneys.....approximately 30 min later, appears they are all here now.

Andddddd this just came through on the docket 😂

This motion to strike by counsel for Floris explains why the "superseding complaint" was improperly filed.... storage.courtlistener.com

And finally, here we go!

Parties introduce themselves.

Cory Jacobs for DOJ. He's with James Kirkpatrick, John Borchert. Bryan Witt for FBI.

For Floris, it's Mary Dohrmann (and 3 others).

For Benavides, it's Ron Safer (and 3 others).

Magistrate judge Faruqui (MJ) talking about how to move forward with production of evidence to defense under Jencks, Brady....parties had agreed to protective order, but DOJ has not yet produced anything to defense. There's some audio evidence that's redacted...

MJ pivots to motion to strike the "superseding complaint."

Observes it's "unusual" to charge a case with conduct like this by complaint....usually it's when there's some danger of release/threat that you would do complaint first. But eventually has to get to grand jury.

Faruqui says never had a situation like this in his career as a magistrate...

But notes that even if there is no probable cause on complaint...DOJ could still go to grand jury at any time.

We've never had complaints filed on the record unsigned while waiting for judge to make PC finding, he says.

Counsel for Floris -- Dohrmann -- says she wants to name the elephant in the room.

This is about "political football," not the law or the facts of the case.

These are decorated public servants.

Dohrmann continues: 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: The first complaint is even more inaccurate than the first. There are changes in the facts, suggesting that there's Brady material that came to gov's attention..

Clerk's office has struck the complaint. But we ask that court take this conduct into consideration for PC determination

MJ asks how he should proceed. Gist is that he wants to know should he proceed on first or second complaint....Second has new info, potentially info that has been corrected. What to do?

DOJ: What we filed is superseding complaint. The way we read the rules -- I admit it's novel -- I had not done this before. Our reading is that to issue a superseding complaint, that does not require probable cause. If we were seeking an arrest warrant, it would.

MJ: Are you aware in this district or any other in which the Justice Department has sought a superseding complaint without a probable cause finding?

DOJ is not aware of any such circumstances....

MJ: 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?

DOJ: Yes

MJ: But you agree an original complaint would need PC finding? Could that be issued without PC?

DOJ: I think that whenever I have sought an initial open complaint, there is generally an arrest warrant.

MJ: So DOJ is now essentially creating a new way of charging people....? This is very concerning....throwing gasoline on what defendants are saying about this being unusual. Why would you not just want a MJ to make a PC finding as you would in every other case?

MJ: Why today on this one case are you, the United States, changing the way it has done things in its entire history?

DOJ: To be clear, we're ready for a probable cause finding. We can put witness up ready to prove up probable cause and they can cross examine him.

MJ: 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.

DOJ: 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....

DOJ: We think that here today we can swear out the complaint and proceed to preliminary hearing...

MJ: I'm reluctant to do the given what you've said your view is of what my signing that complaint would mean...the idea that the MJ just rubber stamps it w/o PC determination...

Ron Safer, for Benavides, up now. He says he thinks we should proceed on the first complaint. Have that probable cause hearing. With regard to the what has changed, we don't have perfect insight into what has changed. We'll explore that w/ agent. Then your honor will be in position to address that..

MJ announces that we'll proceed on the basis of the first complaint, call up the witness.

DOJ asks for clarity, and MJ says that he will not rubber stamp second complaint as DOJ has suggested. He won't sign it unless he has time to review and make probable cause finding...So for now we're going to move forward with preliminary hearing on basis of first complaint.

We're on recess right now.

Things were moving fast earlier and when we get another break I'll explain why but....the position DOJ is advocating wrt the filing of the second complaint is totally nuts.

Okay we're back.

The government says it will call its witness.

Borchert, for DOJ, calls special agent Bryan Wright-- oh, pardon me, he says, stopping short. It's Bryan WITT.

Witt is sworn in, takes the stand.

Borchert begins direct examination on behalf of DOJ.

Borchert: Did you review 1st complaint?

Witt says he did.

Borchert: And there were things in that you believed needed to be clarified for the court?

Wit: I did.

Borchert walks Witt through some of the changed between complaint 1 and complaint 2. For example: Para 41 of C1 said this committee staffer was "present" at interviews of Benavides and Floris. But C2 says staffer "oversaw" the committee interviews.

I couldn't quite hear for a moment, but I think DOJ then made oral motion to amend/substitute that graf (and maybe one or two other amendments) in the 1st complaint. Then DOJ sits down -- that was quick! Essentially direct was just geared toward making corrections/motions for substitutions.

Now Safer is up on cross examination for Benavides.

Safer: You did not investigate what the committee had?

Witt: Our extent of communications with them was limited to materiality....I spoke to general counsel of committee, Steve Castor (sp?).

Safer: Did you ask if the committee knew that the FBI had a laptop in 2020 attributable to Hunter Biden?

Witt: I didn't have to. Focused on materiality...

Safer: But yo understand the charges are about misleading the committee? So what the committee knew at the time matters....?

Safer: And did you ask what they knew at the time?

Witt: I did not.

Safer: How could whether Benavides knew in 2020 that the FBI possessed a laptop attributable to Hunter Biden affect their investigation? Explain to the court how his knowledge of whether or not the FBI had a laptop could have affected the judiciary investigation.

Witt (responding to above): I would defer to staffer but they would've asked follow up questions....

Safer: 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....?

DOJ objects: Asked and answered.

MJ says we're getting to the heart of the matter -- materiality. He'll allow a little more on this. Wants to know not how WOULD it impact, but how did it impact investigation....?

Safer repeats this question.

Witt, in turn, points to para 56 of C2.

Safer: That's all you're going on for materiality?

Witt: Absolutely.

Safer: But at the time of this testimony in 2023, the committee already knew that the FBI had a laptop attributable to Hunter Biden?

Witt: I don't know

Safer: But there's testimony in affidavit saying as much?

Safer points Witt to this portion of the affidavit, regarding testimony before the committee by employee 4. Witt confirms employee 4 testified before Benavides. Employee 4 testified that Benavides knew FBI had laptop attributable to Hunter Biden

Safer: Did you ask the person you talked to from Judiciary Committee -- well, you had info from one person that Benavides knew. But then there's testimony that he couldn't recall. Did you ask how state of his memory impacted investigation?

Witt: Would refer you back to para 56 re: staffer interview

Safer asks about part of the transcript (not sure if this part is in the affidavit) in which Benavides recounts a conversation he had with an intelligence officer, which led him to conclude from that conversation that the FBI had a laptop.

Safer, continuing this line of questioning: So despite the fact that you had testimony of Employee 4 that Benavides knew, you had testimony from Benavides himself that he knew....how did that impact the committee's investigation?

Witt: There are other statements in which he made clear denials

Safer: We'll get to that...

Witt talks about limits on the scope of questioning committee staff. Questions were limited to materiality.

Safer: Did you tell magistrate that? That your questions were so limited?

Witt: Counsel to the committee is not like other witnesses

Safer: Did you address that in affidavit?

Witt: No

MJ: And who made that decision.

DOJ interjects, says there are speech or debate clause concerns. We move on.

Now we're talking about scope of committee's investigation and purpose of Benavides and Floris testimony before committee. In transcript, preamble doesn't mention anything about Hunter Biden? It's about censorship?

Witt agrees description doesn't on its face mention Hunter Biden

Safer: So why was magistrate who signed complaint told investigation was about Hunter Biden?

Witt: The questioning was about a number of topics

Safer: Anywhere here where Benavides was specifically told purpose of testimony?

Witt: Don't believe so, don't know what he was told before...

Safer asks about the "defensive briefing" referenced in the affidavit. (This was briefing that Benavides and Floris gave to Grassley/SJC in 2020). The defensive briefing had nothing to do with Hunter Biden laptop, right?

Witt pushes back in this a little, then says he's not sure

Okay we're on lunch break until 2:45 pm.

See you all back here then!

Okay before I scarf down a Prettyman courthouse cafeteria caesar salad...one more cheeky reminder to consider supporting our work if you value live threads like this! givebutter.com

Also: subscribe to my Substack (it's free)! Slip Opinion is where I post legal analysis, scoops, and documents that don't quite fit on our site. annabower.substack.com

We are back!

Safer: You say in your aff at para 39 that there had been a letter from Grassley and Johnson to Benavides and Floris. You said that an Aug letter from the senators said they wanted to interview F and B "to explain the FBI's interference in the senators' Hunter Biden investigation."

Safer has Witt look at the actual letter. It doesn't say that quote. Witt says he didn't say the letter said that, he said the senators said that. bsky.app

Anna Bower10/27/26

We are back!

 

 

Safer: You say in your aff at para 39 that there had been a letter from Grassley and Johnson to Benavides and Floris. You said that an Aug letter from the senators said they wanted to interview F and B "to explain the FBI's interference in the senators' Hunter Biden investigation."

Safer asking about Witt's interview with Steve Castor/committee staff.

Safer: The people who you spoke to were not present at Benavides testimony?

Witt: Correct

Safer: And you don't know whether any of those people you talked to read his testimony?

Witt: I don't

Safer: These witnesses were not sworn, right?

Witt: Correct

Safer: But in your affidavit you said they were, right? And that's a false statement?

Witt: It wasn't an intentionally false statement

Safer: Whether a false statement is a crime depends on intent, right?

Witt: I would think so

Safer: Do you know from 2019-2020 Benavides was with the FBI's Foreign Influence Task Force?

Witt reads aloud from exhibit document describing FITF operations. Idea Safer is getting at is that FITF wasn't doing criminal investigations; was focused on intelligence.

Now focused on this part of Benavides testimony.

Safer: Did you ask the committee how Benavides testimony about his knowledge of a New York Post article would impact its investigation?

Witt: I would have to check the questions we asked them. Might've posed as a hypothetical

Safer next focuses on this exchange from Benavides '23 testimony (after he left FBI). Questions focus on tense -- he's being asked if the FBI *is* in possession of the laptop. But Benavides had left FBI by then, yes? So he wouldn't know whether FBI *is* in possession of a laptop at that time?

Now parsing this part of Benavides testimony and what it means for there to be an investigation "related" to a laptop.

Witt gets confused, so MJ jumps in: The idea is that they weren't investigating the laptop itself. It was evidence.

Witt agrees: They were not trying to prosecute a laptop.

Safer: And you don't know what Benavides understanding of an "investigation related to a laptop" was?

Witt says he can't speak for Benavides' understanding of words

Onto para 54.

Safer: What you didn't do in questioning staffers with materiality, didn't provide transcripts? Didn't ask had the questions been answered differently, what would you have done?

Witt: We did not do that

Safer: The questions discussed during Benavides testimony were at least 3 years after the events in question?

Witt: Correct

Safer: Do you know if Benavides after he left the FBI in fall of 2020 ever gave any thought to what was happening at the FBI?

Witt: I don't know

Safer: Did judiciary committee provide Benavides any materials to review before testimony?

Witt: I don't know

Safer: Did you ask?

Witt: I did not

Safer: What evidence have you uncovered that Benavides remembered in September of 2023 the "correct answers" -- in your view -- to the questions asked, but *knowingly* gave false answers?

Witt: Would be based on multitude of communications on these topics. Common sense that he would remember it

Safer: Other than your assumptions, have you seen any emails, texts, letters...witnesses who talked to benavides and said benavides planned to lie...etc.?

Witt: I have not

Safer: Any direct evidence -- other than your assumption -- that he intended to lie?

Witt: Not that I can think of

Safer: Any evidence of motive to lie?

Witt: I do not

Safer: You were aware he served his country for 20 years?

Witt: I did

Safer: You understand that servants like Benavides work to keep us safe from terrorists?

Witt: I guess

Safer: Know he deployed to Iraq?

Witt: I did not

Safer: Know he won director's award for outstanding counterterrorism?

Witt: I did not. There's tons of awards in the FBI.

Know he testified before congress dozens of times, and not one has question of truthfulness been raised?

Witt: Did not

Safer: You investigate drug dealers and human traffickers. You know how important history, credibility is...Before you came into court to accuse these public servants, wasn't it important to do a little research on their background?

Witt: I was instructed to investigate this specific issue

We're on a break while magistrate Faruqui deals with (unrelated) grand jury returns. Defense counsel still has more cross examination, plus there will be re-direct...looks like hearing will continue into tomorrow. But stay tuned, because the judge plans to hear at least another hour of cross...

Okay we're back. Margaret Donovan is starting her cross examination of FBI agent Witt on behalf of Nikki Floris.

She starts by asking how this investigation came about.

Witt: Director Patel directed investigation. July letter referenced several potential crimes...18 USC 1512 was one (tampering).

Donovan asks about Witt's experience with intelligence and counterintelligence investigations. Witt says his background is criminal, unclassified. Not intelligence/counter-intel.

DOJ objects to this line of questioning

Donovan explains that she's trying to ascertain whether Witt understands the nature of the subjects and type of investigations Floris was testifying about. Also notes that the 1st affidavit (not sworn by Witt) didn't mention experience, while 2nd (Witt's) did

Donovan goes back to Patel. He directed you to investigate Floris?

Witt: Directive in July given to Kansas City, I was assigned through chain of command

Donovan: Is that normally how investigations play out?

Witt: I've not had a tasking from a director in my career...agrees this was "unusual"

Donovan: We talked about how this was unusual. Direction was basically find evidence of crimes of one person, before you ever investigated?

Witt: It was actually multiple people besides Floris. He opened it up other people. And president Trump the night before I this letter had made announcement

Witt says he had concerns that this would be a distraction from other cases, that it would be viewed as "political." Especially because of statement by Trump the night before (on July 16). In that address, Trump said he was directing the FBI to investigate people.... cnn.com

Donovan: What I'm trying to connect here is that we're talking about Floris being unpopular with the president because she discredited something that's one of the president's theories about the 2020 election

Objection from DOJ

Witt: I don't want to speak for the president

Donovan: You never referred to this as a witch hunt?

Witt: I don't know...I don't believe so. Think people could've been saying that around the office. It was a concern that this would become very controversial.

Witt: The tasking I was given was to investigate alleged crimes committed by Floris and others.

Donovan: The complaint alleges other conspirators. Who are those people?

DOJ objects, says unindicted co-conspirators shouldn't be named.

Donovan says she can get to point, which is that the crimes Witt was initially tasked with investigating at some point shifted to other crimes.

Witt concedes that's correct. The initial tasking was the Albany IIR. Shifted to congressional testimony.

Donovan: When did it morph?

Witt: Not sure.

Witt: not sure when shifted..also considered Albany IIR, but looking for where the most evidence was.

Donovan: You were looking for crimes against Nikki Floris?

Witt: Wouldn't characterize it that way....

Now we're on a break while the magistrate deals with grand jury returns.

Neville Hedley for DOJ civil rights division shows up.

Magistrate Faruqui: Do you have a return for us?

DOJ: It's a non-concurrence, your honor.

[AKA a no-bill 😂😅☠️]

To be clear: The grand jury return was not for this case! The magistrate just had to pause to deal with returns from other cases. And the first one happened to be a no-bill.

Donovan back on cross examination on behalf of Floris. She's trying to understand how the predicate changed from the Albany IIR to this Congressional testimony.

What directed your attention to her testimony in Sept '23?

Witt: As we were looking into the Albany IIR (Chinese 2020 election), we found their ['23] testimony...and we were already reviewing their internal comms from 2020, so we were familiar with what they were saying [back in 2020]

Donovan: Did the prosecutors your working with disclose letters from Patel as a part of the disclosures today?

Witt: I don't know

DOJ says it can check

Donovan says that they have an opening AC, but it says "pursuant to a letter." Want to make sure have those letters

Donovan: Byron Militello was original affidavit. Do you know his background?

Witt: More in intelligence, I think.

Donovan asks if he was ever based in Chicago....

Donovan: For the first affidavit, who was part of the effort?

Witt: The agents, some of the prosecutors sitting at the table here...James Kirkpatrick was one.

Donovan: What's the nexus with Kansas City? Do you know why assigned lead?

Witt: I do not

Donovan: Who actually sat down and drafted?

Witt: We would all help draft complaint, but prosecutors would be the ones focused on the legal elements.

Donovan: prosecutors deciding what goes forward?

Witt: right

Donovan: Were you involved in swearing out complaint?

Witt: Byron was already in DC, trying to interview people, so for ease he's the one who swore it out

Donovan seems like she's about to ask how many times DOJ has submitted this complaint to a magistrate before Judge Sharbaugh signed off... DOJ objects

Donovan proceeds with a version of that question. Witt says to his knowledge the version sworn out on Oct. 16 was first and only time presented to magistrate judge

Donovan notes discrepancy between when sworn out (Oct. 16) and when signed (Oct. 20). Witt doesn't know about that...

Donovan: Aware of prior finding against Millitello that he was not sufficiently diligent in preparing warrants? Would it surprise you to learn that the court in a 2012 case found the warrant was defective?

Witt: Never heard of that...

Donovan: What I'm getting at is does that impact your reliance on Millitello's previous affidavit?

Witt: It wasn't an affidavit Millitello did on his own. It was the entire team.

MJ interject. What I need to know is whether there are statements in your affidavit that you're concerned about considering what you've learned about your colleague having a finding of lack of diligence?

Witt indicates that he feels comfortable.

MJ asks if this is a good stopping point.

Donovan says yes, this is a good stopping point.

MJ says we will resume tomorrow morning at 9 am. Expects several hours more of testimony, between cross examination and re-direct. Plus some legal issues to work through.

Before we go, Donovan says she may use a powerpoint tomorrow.

And with that....we are done for the day.

Thanks to all who followed along...that was a *very* challenging hearing to live post given how in the weeds it got. If you're still here...bravo!

See you all tomorrow morning at 9 am.

Yesterday’s hearing was such a wild ride that at one point, a colleague in the media room threw up his hands and exclaimed, “What else could happen??”

We’ll find out soon.

The hearing resumes at 9 a.m. ET.

I’ll be covering it all for @lawfaremedia.org. Follow along! 🧵🧵🧵⬇️👇

Where we left off yesterday: Margaret Donovan, counsel for former FBI agent Nikki Floris, was cross examining FBI agent Bryan Witt.

On cross, Donovan elicited testimony from Witt that the investigation of Floris was initiated at the direction of FBI director Kash Patel.

Patel's directive to investigate Floris came just one day after Trump's July 16 address to the nation regarding the 2020 election.

In that speech, he accused "rogue bureaucrats" of "burying" Chinese activities to manufacture illegal ballots for Joe Biden.

cnn.com

This is relevant to the investigation of Floris because during her time at the FBI, Floris played a role in directing the recall of an intelligence report issued by the Albany Field Office regarding allegations of Chinese interference in the 2020 election.

The Albany IIR was recalled bc (among other things) of concerns about its credibility.

Trump's July 16 speech also directly alludes to Floris because he mentions an FBI official who said she was running a "shadow government." (Floris did say that, but in context it obviously appears to be a joke.)

In his July 16 speech, Trump then went on to direct the FBI, CIA, and DOJ to investigate how and why such "crucial information" was hidden, and to file criminal charges "if appropriate."

On July 17 -- the very next day -- Patel directed the investigation into Floris and others.

Witt said they started by looking at potential charges related to the Albany IIR recall. But eventually the focus shifted to Floris and Benavides' Congressional testimony about the Hunter Biden laptop.

So that's where we left off yesterday, with Donovan questioning Witt about the origins of the investigation.

Donovan, by the way, was completely terrifying on cross (complimentary). I mean, SCARY good.

And now....the parties are back in court.

Magistrate judge Faruqui is back on the bench.

After dealing with some housekeeping related to redactions of evidence, DOJ says it wants to address the "scope" of the preliminary hearing.

On behalf of DOJ, Cory Jacobs (I think) is at the lectern.

Jacobs reads directly from a bunch of case law.

Then he argues that the scope of the questioning yesterday went beyond the probable cause inquiry bc some of the questions went to bias or motive of the investigators. It seems like we're veering into more of a discovery hearing about animus, he says.

Faruqui, responding to this, has a question about one of the cases. He reads aloud from a case stating that a preliminary inquiry is an "investigation" into the "reasonableness" of the charges. Isn't that exactly what defense counsel is getting at w/ their questions re: animus & origins?

Jacobs mentions that animus would be an appropriate area of inquiry at a later time if defendants file a selective or vindictive pros motion, but this hearing -- focused on probable cause -- has a more limited scope.

Faruqui wants to hear from the defense.

Safer is up first for Benavides. He says he disagrees completely with DOJ. Credibility of witness is key. I believe he testified untruthfully yesterday, intentionally so (gives some examples). That's why his credibility is absolutely in play....

Safer: Now, when the president of the US says "charge these people," that puts pressure on his to do the things he did. That may put pressure to testify untruthful.

He admitted that materiality came solely from the general counsel of the Judiciary Committee, a political actor. We will see that the questions that were proposed to that political appointee were slanted. And the motive for that is that the president and Kash Patel directed that this case be brought

Counsel for Floris similarly argues that everything elicited on cross was clearly in scope.

Faruqui, addressing everyone: I understand there is a standing objection from DOJ as to scope. I'm not saying there are intentional falsities this witness has made. But there are inaccuracies in the document...that alone is basis to understand bias or motive...

Faruqui concludes by saying he wants to continue with the hearing, but notes the standing objection.

Before witness brought in, Donovan makes her way to the lectern. She wants to get on the record that they haven't received Patel's letter from the government, and they think it should be disclosed.

Okay, here we go.

FBI agent Bryan Witt is on the stand.

Margaret Donovan is back at the lectern for cross examination on behalf of Nikki Floris.

Donovan: The complaint you signed we established is different from the first affidavit that was submitted. Would you have signed that first affidavit?

Objection.

Donovan tries again: Fair to say inaccuracies in 1st affidavit?

Witt: Yes

Donovan: For example, there are differences in how Round River is described in these, right?

Witt: I would have to look at that. I think the main [inaccuracies] in first affidavit would be the level of personal knowledge of the committee, some differences wrt description of Employee 1...

Donovan: But the upshot is that there were inaccuracies in the first affidavit?

Witt agrees.

Donovan moves on to the Foreign Influence Task Force (Floris's counterintelligence unit at the FBI).

Witt points her to paragraph 14 of his affidavit.

Donovan: Had you heard of FITF before this case? Witt says he wasn't familiar with its work. Donovan establishes that they obtained FITF internal records as part of investigation. Wants to know time frame and volume of comms reviewed.

Witt: Requested anything relevant...

Donovan: Did you haven the full universe of Nikki Floris's communications?

Witt: We requested any and all

Donovan: Are you aware Floris used 3 different email systems in course of job?

Witt: Yeah...red, green, yellow....but we're not familiar with all the different ways of communicating.

Donovan: But as I see it, the complaint is based on communications she had...you were aware of those communications systems?

Witt: We requested any and all communications in any type of format or platform

Donovan: You received comms on top secret side?

Witt: I don't know...didn't review all

Donovan: So you have 3 different emails, Teams, Skype, instant message...you have hundreds of thousands of messages to or from Nikki?

Witt: Wasn't just for Floris and Benavides...we were looking at other people in their hierarchy or circle too.

Donovan: Did you look through those comms manually, or with AI?

Witt: What I'm aware of was people reviewing manually, line by line. We brought in temporary employees to assist

Donovan: Did you have a sense of what Nikki's daily work life was like on daily basis?

Witt: Yes, tons of communications

Donovan: Did you observe from review of work comms that she had 200-300 employees she was supervising?

Witt: I'm not sure how many...but sounds right

Donovan: Did you know in 2021 she became acting assistant director? Aware that would involve supervising 500-600?

Witt: Wouldn't surprise me

Donovan: You didn't include the volume of people she supervised during this time and what her daily work life was like in the affidavit?

Witt: No, don't see the relevance

Donovan: Would it surprise you to learn Nikki had 2 additional responsibilities in addition to FITF? In charge of intelligence analysis re: China, re: Russia?

Witt: No

Donovan: Would you agree the opening document of Round River had nothing to do with Hunter Biden?

Witt: On its face, it did not

Donovan: When you approached the court for a warrant, did you provide the magistrate with the full Congressional testimony to the magistrate?

Witt: would have to defer to the prosecutors DOJ interjects: We will stipulate it was sent w/ original application

Donovan: Did you read full testimony when investigating this case?

Witt: I reviewed it, but the primary reviewers were the team. I relied on review by the team.

Donovan: Would you agree the testimony started at 10 am that day?

Witt: Wouldn't surprise me

Donovan: On pg. 175, it says at 2:48 the interview was adjourned?

Witt: Trust that's accurate.

Donovan: That's about 5 hours?

Witt: Yeah

Donovan: Length not important to include in affidavit?

Witt: That is lengthy, I've done longer. But there's period when they can correct testimony after...they could've addressed that. If she was tired from long interview, she could've come back and addressed inaccuracies....

Donovan: Are you aware of who actually signed the review of the transcript? It's redacted here, but do you know whose name is under that?

Witt: I do not

Donovan: You don't know if It was an attorney for Ms. Floris?

Witt: I do not. I assumed Floris and an attorney reviewed transcript for accuracy

Donovan: So you have not confirmed that Nikki Floris was the reviewer who signed this form attached to the transcript?

Witt: I have not confirmed that

Donovan says she's about to start another chapter of her cross examination, so we're taking a 10 min recess.

I need coffee. See you all back here in 10!

We are back!

Anddddd....as promised, Maggie Donovan has brought a PowerPoint with her today!

First slide is a bright blue background with the case caption printed in yellow.

Donovan is still focused on Floris's congressional testimony at the moment.

Donovan: Now going to page 165. Do you see where she's describing the other government agencies she worked with in her role? CIA, ODNI, NSA, CISA...?

Witt: Yes

Now Donovan displays excerpt. A redacted speaker says they want to get their "understanding" on the record, which is that the committee has questions about the defensive briefing that was provided to Grassley & Johnson.

Witt, in response to this, says that was just the initial scope of questioning.

On to pg. 23 of transcript, in which Floris is asked about Aug 6, 2020 defensive briefing provided to Grassley and Johnson. Floris replies she remembers giving the briefing.

Donovan to

Witt: About three years had elapsed between Aug 2020 and 2023 congressional testimony?

Witt: Yes

Donovan points Witt to this part of the affidavit. Witt says this is the section that contains the false statements that are basis of complaint. But some of this section contains context.

Donovan: So complaint could've been better at ID'ing specific false statements?

Witt seems to agree.

Now we're looking at these grafs from the 1st and 2nd complaint. It's 31 in the 1st, 45 in the 2nd. Witt says nothing was changed between the two wrt the cited testimony.

Donovan notes there's an ellipses in both.

Donovan focuses on this exchange.

Donovan: When she says "not at that time," she's talking about defensive briefing?

Witt: I believe so

Donovan: And that was Aug. 6, 2020?

Witt confirms after Donovan shows him previous transcript testimony about timing of defensive briefing

Then Donovan shows Witt this internal email that's cited in affidavit and that supposed contradicts one of the false statements. She's showing it to establish that Floris's email reflecting her awareness of Grassley and Johnson report was sent AFTER the Aug. 6, 2020 defensive briefing.

Donovan: Given that email was sent after the defensive briefing, would you agree that there is *no evidence* before the court that this specific statement -- that she was not aware of investigation "at that time" of defensive briefing -- is false?

Witt: Complaint is not meant to be exhaustive...

Witt: I believe we have internal comms...

Donovan: You *believe* you have evidence? But it's not in this complaint, right?

Witt tries to push back but he ultimately comes up with nothing. Donovan says she's going to take him as agreeing there is no evidence in the complaint that statement is false

Now looking at this part of the questioning.

Donovan focuses on the differences between the description/key words used in the Congressional questions and the content of the report summary Floris forwarded back in 2020

On to para 46 of second complaint.

Donovan: Is this question about the Baltimore Hunter Biden investigation?

Witt: I think so...I assumed so. I can't speak for the questioner.

Donovan then displays except that shows larger context of next three questions immediately after this testimony excerpted in complaint.

The next three questions from the committee ask if she has discussed the "Hunter Biden investigation" with three different US attorneys (Weiss, Graves, Estrada).

In response to each question, Floris says no. Witt says they have a calendar invite from one of the US attorneys.

Donovan: let me get to the point. These are US attorneys? And they're doing criminal investigations? But Nikki wasn't? She's counterintelligence? bsky.app

Now on to this part of the testimony cited in the affidavit.

Donovan: You would agree this part of the questioning is about a Daily Beast article and a hypothetical?

Witt: Yes

Donovan: Do you recall that about 20 pages earlier in her testimony, Nikki was asked about the Daily Beast article? And she said she was not familiar with it? Yet the committee staffers continued to ask her about it?

Witt: I am familiar

Donovan: Would you agree that someone who hasn't read the article wouldn't know what the article was about?

Witt: She says "I don't know what laptop the article was referring to"

Donovan: But would you agree she was asked about an article she didn't read. So her response that she doesn't know what's in the article is correct?

Witt: She doesn't say she doesn't know what's in the article, she says she doesn't know about the laptop...she was familiar w/ the laptop

Donovan: What would she have to say for this to be true?

Witt: We believe that her statement that she doesn't know what laptop this article is referring to is false.

MJ jumps in. So for the statement to be true, she's have to say I do know what laptop the article is referring to?

Witt: She could've said a lot of things

Donovan: So your position is that if someone says "I don't know" in response to a question about an article they didn't read, that would be a false statement?

Witt: We believe her response "I don't know" is a false statement.

Donovan moves on to the hypothetical. Would you agree she's answering in response to a hypothetical posed to her?

Witt: Yes

Donovan: When she says "I don't have any knowledge of said laptop," it's referring to a hypothetical laptop in a hypothetical question?

Witt: Yes

Donovan: But the government's position is that her statement is false?

Witt: The false statement is where she says "I don't have any knowledge of said laptop."

Donovan: And "said laptop" refers to a *hypothetical* laptop that you just testified about?

Witt: Yes

Donovan: Did you ever interview Nikki?

Witt: No

Donovan: You testified earlier you had no way of knowing how she understood questions?

Witt: Correct

Donovan: But you never pursued any direct evidence from her?

Witt: It would be helpful

Donovan: But you never talked to her?

Witt: Correct

And with that....we're on lunch break.

What a doozy.

False statements about a hypothetical laptop. What!!

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We're about to get started.

In the meantime: If you're on Substack and haven't subscribed to Slip Opinion yet...please do!

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Okay, here we go.

Donovan back at the lectern. She asks about evidence of intent. What's reason would Floris have to answer questions falsely?

Witt: Looking at Albany IIR comms...the celebratory nature of recalling that IIR led us to believe they have motivations to conceal these types of things

Donovan: You would agree nothing about the IIR -- none of that evidence -- is in this complaint?

Witt: Yes... nothing explicit

Donovan asks about materiality. She asks about the "committee staffer" referred to in the affidavit. That's Steve Castor?

Witt: Yes

Donovan: Did you approach any Democrats on the Committee?

Witt: Absolutely not

Witt explains what they got from Castor/the committee. First it was a six-page memo. They weren't allowed to interview staffers directly. It was like a "paper interview" in which they posed questions to committee staff.

Donovan: We talked about some pressure to push this case from the director and deputy directors of the FBI.

Witt: I would say some were closely monitoring situation...Deputy directors visited Kansas City in person...We had at least 2 meetings with Director Patel.

Donovan tells magistrate judge that they did not receive disclosures about how Witt/investigative team updated senior leadership. Did not receive emails or comms to that end...

DOJ, addressing this, says they looked at emails and didn't see anything that would be produceable

MJ: Take a look...I think their argument would be that things he would say updating his superiors would be Jencks (referring to Jencks Act, which requires the government to produce prior statements or reports made by a testifying witness)

DOJ says things have been moving fast...MJ says take a look again, see if there's any Jencks material.

Donovan announces she's done with her cross examination.

DOJ is up next on re-direct.

On re-direct, it's John Borchert for DOJ.

Borchert starts off by admitting an exhibit. It's a letter Grassley/Johnson sent to Benavides and Floris on Aug 23, 2022. It says something about the committee being concerned w/ FBI officials trying to suppress derogatory info about Hunter Biden

[Notably, the Aug. 23, 2022 letter isn't specifically mentioned in the affidavit. But according to Borchert, it's referenced in a footnote in one of the other letters mentioned in the affidavit and previously admitted by the defense]

[Point of this inquiry seemed to be a response to questioning from yesterday in which defense counsel alleged that the "According to the Senators,....." line in affidavit was false statement. But it's difficult to follow w/o seeing the letter exhibits, which we don't have.]

Borchert asks about investigation origins. Witt confirms they initially looked at 1505 (obstruction) charge.

Borchert: And in fact the government has charged -- well, has requested to charge -- 1505?

Witt: Yes

[This is a reference to the so-called "superseding complaint, which tried to add obstruction counts] 

Borchert: You were asked about whether you interviewed Floris. Testified you haven't interviewed her. She didn't offer to make a statement?

Witt: No

Borchert: But you're willing to take a statement from her?

Witt: Yes

Borchert: Willing to do polygraph?

Donovan objects, invoking client 5th amendment rights, says this is wildly improper line of questioning

Borchert continues. Do you have any evidence that Floris is unwilling to give statement?

Witt: No

[Actually, Donovan technically didn't *invoke* her client's 5th amendment rights -- she specifically said that Floris has not done so, at least not yet -- but she did reference the general principles]

We're on break for a few minutes.

As we wait to resume, a man who appears to be dressed up as Papa Smurf is milling about in the courtroom.

Someone in the media room shouts: "Uh, why is Papa Smurf in court?"

We conclude it must have something to do with Halloween.

We are back.

MJ asks: Any further questions from DOJ?

DOJ says it has no further questions for Witt.

MJ Faruqui explains that he would prefer to leave argument and remaining issues for tomorrow. He wants DOJ to be prepared to go line by line, identifying the specific alleged false statements.

Dohrmann, on behalf of Floris, says that the defense would request that by this evening DOJ should produce a list identifying the specific alleged false statements.

Safer has some questions on re-direct.

Safer: You were asked if there are Democratic staffers on Judiciary Committee. You said, I assume there are, I have no idea. Correct?

Witt: Yes

Safer: You were under oath?

Witt: Yes

Safer: You would answer the same again?

Witt: I should have said "I do not know" instead of "I have no idea."

Safer: How many times did you review Benavides testimony?

Witt: I reviewed, generally, the testimony. I did not read through every word. I relied on my team.

Safer: Before coming here to testify, you did not read the transcript?

Witt: I am familiar with the testimony, I did not read every word.

Safer: You do know what majority and minority means right? One party and the other?

Witt: Yes

Safer: Okay let's look at page 3 of the transcript. Staffer says the majority will ask questions for one hour. Then the minority will have equal opportunity of time...You see that?

Witt: Yes

Safer: So that makes it clear there were democratic members on the committee, and they were present for Benavides testimony?

Witt: Yes..

Safer: So should we infer from your previous response -- "I have no idea," and based on documentary evidence that you knew otherwise, that you made an intentionally false statement?

Witt: I should have said "I don't know"...partisan nature of the committee was not a concern for me

Now Safer is addressing the letters. They're looking at the one dated August 25, 2022. It's addressed to Benavides at the FBI.

Safer: Problem is, Benavides was not at the FBI in 2022? So you have no idea if he ever got this letter?

Witt: ....

Now Safer looks at August 23, 2022 letter that was referenced in a footnote in a different letter. [This part got a little confusing, but as I understand it, this one was also addressed to Benavides at the FBI.]

Safer asks about the communications with the committee. You found out people who completed the initial written interrogatories were not present for the interviews?

Witt: Castor was present for Floris interview, not there for Benavides.

Safer: And you don't know if anyone with any personal knowledge filled out those written responses?

Witt: Castor was there for Floris, but not for Benavides. As soon as we found out about potential lack of personal knowledge, we immediately sought to correct it. Interviewed Castor...

Witt: Quite frankly whether they were present or not, we just wanted their opinion on the investigation....Castor told us he oversaw the investigation. He did tell us he did not personally read the transcripts but I assumed that the memo he gave us was drafted by people who did due diligence...

Safer: When you testified on direct that you talked to Castor, you didn't tell the judge that Castor never reviewed the transcripts and the staffers who prepared these responses never read them either?

Witt: That's why we changed language to "oversaw"

Safer is done, and Donovan is back up on re-direct on behalf of Floris.

Donovan: You testified about Castor overseeing the investigation on behalf of republicans for the committee?

Witt: Partisanship wasn't a concern...I just wanted someone who would be able to testify on materiality for committee

Donovan: But do you understand that democrats have their own general counsel for the committee?

Witt: I just wanted someone who was authorized to talk on behalf of the committee about materiality

Donovan: But you understand now that Steve Castor was authorized to speak on behalf of *Republicans* on the committee?

Witt: I do now....but partisanship did not matter to me....I did not know if Castor was Democrat or Republican. I wanted someone who could comment on materiality

Witt: No one explained to me about the partisan nature of the committee. I just wanted someone who could comment on materiality.

Donovan: Okay but wouldn't you agree it would be better to have someone from both parties?

Witt: Hindsight is 20/20

Donovan: Did Castor read the Floris transcript?

Witt: I believe he was present for it and familiar with it. We didn't ask him if he read it.

Donovan: You discussed correcting the inaccuracies were brought to your attention.

Witt: Yes

Donovan: Do you have any evidence of anyone bringing inaccuracies to the attention of Floris?

Witt: No

Donovan: Government went straight to charging?

Donovan: What involvement did FBI director have in updates?

Witt: It was basically a check-in on frequent basis...at least weekly. Wanted to know if we had enough resources, etc. There were video conferences, weekly meetings...

Donovan: You said deputy directors involved?

Witt: Yes...Andrew Bailey, Chris Raia, I think Perez attended at least 1 meeting....

Donovan: Have you ever in your 24-year career ever had an FBI director and 2 deputy directors involved in a 1001 false statements case?

Witt: This was the first time

We're back. MJ Faruqui says he wants witness to stick around until tomorrow. There are some additional materials that Faruqui thinks should be disclosed under Brady, but government wants to appeal to Chief Judge Boasberg. Witness could be recalled following that decision if materials are disclosed

MJ says that prosecution and defense are going to get in contact this evening about scheduling time tomorrow with Chief Judge Boasberg re: additional disclosures. So you all will have decision tomorrow from Boasberg, and US will do its best to have those recordings ready tomorrow.

MJ says we will reconvene tomorrow. Will start with DOJ identifying the alleged false statements. Then argument and rebuttal.

Want to be clear: They only have to have probable cause as to a single statement for each defendant.

MJ: If I can make finding right away, I will make finding. Potential for appeal to Chief Judge Boasberg. There is a scenario in which I might need need more time... I will let you know if that's the case.

And with that...we are done.

Thanks to all who followed along! See you all back here at 11:30 a.m.

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What else could happen? Well..

Walking down a dark hallway after the hearing, I was suddenly engulfed in fog…and a clown came lurching toward me.

Hypothetical fog? Hypothetical clown?

No!

Courthouse Halloween party. Fog machine. Clown costume.

Papa Smurf mystery solved!

The clown told me to have a good night.
Looked like a fun party tbh!

HAPPENING NOW: Day 3 of the probable cause hearing in the case against former FBI agents accused of lying to Congress.

This proceeding has been a wild ride thus far...and we could get a ruling today.

I'm back in the media room for @lawfaremedia.org. Follow along! 🧵⬇️🧵⬇️

For those who are just tuning in....

You can catch up on Day 1 here: bsky.app

And you can read all about Day 2 here: bsky.app

Magistrate Judge Faruqui ("MJ") is on the bench. The parties are here, too.

MJ starts by saying the parties went before Chief Judge Boasberg this morning regarding the question of whether DOJ should turn over additional materials under Brady.

MJ previously held that DOJ should produce the material...but government appealed to Judge Boasberg.

MJ now says Boasberg "narrowed" the production required. But still ordered disclosure of some material.

It appears the material is an audio recording.

Given that there is new material, defense counsel for Benavides requests to recall Bryan Witt to the witness stand.

MJ allows it, and Witt is recalled.

He takes the stand.

Ron Safer at the lectern to examine Witt on behalf of Benavides.

Safer: Who else was with you during phone call with Steve Castor on Monday?

Witt: By myself at first, then Carlton Davis came in..and US Attorney Jeanine Pirro.

Safer: When they came in, Carlton asked questions, right?

Correct.

Safer: He gave preamble before asking questions?

Witt: Possible...

Safer: Carlton Davis said "he's got one issue I am getting hammered on over here" and "I understand it is our fuck up" and he's "looking for some assistance here"

Witt: Correct

Safer: And during this call it was mentioned that Castor was part of the "HJC majority" on the committee

Witt: Yes...but Witt says he didn't catch it, reiterates he wasn't focused on partisanship...says he was told Castor was only one who was authorized to speak on materiality

Safer: This case was rushed? You were given deadline correct?

Witt: We were told -- advised -- to approach witnesses at a certain time....

Safer: The prosecutor said "our career prosecutors are completely adamant that they need to speak with one of the 5 officials that were in the Benavides transcribed interview"

Witt: Correct

Safer: But you never spoke to any of those 5?

Witt: Wasn't able to...think that audio covers difficulty of locating them and whether they were authorized

Safer: In written questionnaire to committee, you did not give Castor/committee the actual transcript of Benavides testimony? You characterized it?

Witt: We did not

Safer: And now you know Castor never read the testimony?

Witt: Yes, he told me on the phone

[Safer is now questioning Witt on this excerpt from Benavides' testimony. It's somewhat tough to follow, though, because it depends on comparison between the testimony and how the testimony was specifically characterized in the FBI's written questions to the committee. We don't have that exhibit...]

The gist, as I understand it, is that there's a difference between how the FBI questionnaire characterized the context of the testimony and what the actual context was. bsky.app

Safer: The fuck up was not how it was described in the affidavit. The fuck up was that you needed someone with personal knowledge, correct?

Witt: Correct

Okay, now we're moving on to argument. Up first for DOJ, it's James Kirkpatrick.

The first "false statement" he focuses on is this one from Floris's 2023 testimony.

Kirkpatrick: This is about probable cause. We submit this is about as clear and direct a question that can be asked....but there are extensive examples in the affidavit showing conversations about Hunter Biden at the FITF. Points to "Sportsman" references in affidavit...

Here are some of the "sportsman" examples Kirkpatrick is referring to.

Kirkpatrick also points to this in the complaint. Says it's a fair point that at trial the defense could say yeah, she was really busy...but now at this stage (probable cause) isn't time for that

Kirkpatrick: For those reasons we believe this first statement about discussions at the FITF is false. Then he moves to next alleged false statement, which is this excerpt in which Floris is asked if she had "any involvement" in Hunter Biden investigation. She replies "I did not."

Kirkpatrick says in reality FITF was in frequent communication with the Hunter Biden case team. Cites, as an example, para 18 of the 2nd complaint.

No on to 3rd alleged false statement by Floris. It's the Daily Beast article exchange: "I don't know what laptop the article was referring to"

Kirkpatrick's 4th alleged false statement: The hypothetical laptop! Of course the committee had to turn to hypotheticals, because she wasn't telling them anything, he says.

To show that Floris knew about the laptop, Kirkpatrick points to these facts in the affidavit.

He also suggests that this could go to motive as to why Floris and Benavides might later lie -- because, according to Kirkpatrick -- FITF was "wrong" about the laptop being Russian disinformation.

5th alleged false statement against Floris, according to Kirkpatrick, is this exchange about her awareness of the Grassley and Johnson investigation.

Kirkpatrick also points to this exchange in testimony...says Floris email forwarding summary of report contradicts idea that she didn't know about the allegation

Now Kirkpatrick moves to Benavides alleged false statements.

Benavides says he didn't know about the laptop, Kirkpatrick says, but in reality this was a big day FITF because the story breaks and they were getting all these inquires about whether laptop Russian disinformation.

Kirkpatrick also focuses on this exchange, in which he says he learned of ongoing investigation into Hunter Biden laptop on Wikipedia in prep for his testimony

Then he moves to this exchange, emphasizing that the questioner said he wanted to get really "specific" about =what Benavides knew about the laptop.

Kirkpatrick argues that this testimony by FBI employee 4 is categorically opposed to Benavides claims that he was at most aware of a "narrative" about the laptop

Kirkpatrick also points to this IM exchange cited in the affidavit.

They can argue that maybe he didn't know that was associated with Hunter Biden at that time...but it became clear a few days later that it was. And they had comms w/ Biden case team.

Next alleged false statement by Benavides is in this exchange. Benavides says "I did not" when asked if he has "discussions with anyone from the Criminal Division regarding the FBI’s possession of the laptop"

Kirkpatrick says the evidence that statement was untrue includes this from para 61 of the affidavit

Kirkpatrick moves to materiality in para 56 of the affidavit. Argues that someone who "oversaw" investigation in the majority is sufficient to speak to materiality question....minority wouldn't be in position to take action on behalf of committee.

Now he's addressing motive.

Kirkpatrick: This testimony was about the family of the sitting president of the US at the time. That alone would make someone want to minimize involvement...

Kirkpatrick continues: And FITF charged w/ protecting elections against foreign malign influence. Narrative that laptop was Russian disinformation. At end of the day, FITF got it wrong. They didn't quash narrative or correct the record that this was disinfo...So might want to avoid Qs about that

Now Cory Jacobs makes his way to the lectern to address some case law for DOJ.

He cites standard for "materiality": Statement has to have "natural tendency" or be "capable" of influencing decision-making body...

Jacobs now discussing whether it matters if the decision-maker actually relied on the allegedly false info...success of the deception not relevant, he suggests.

[This argument is related to defense eliciting testimony about whether the committee already knew certain things about HB investigation..]

MJ: So if there is congressional investigation into whether people should wear seatbelts, and agent comes in and testifies about something totally different, there doesn't have to be nexus to the scope of the investigation...?

Jacobs says that's basically how he reads the case law....

MJ: I think their point is that if you're told you're going to testify about seatbelt safety and then they ask you about something else...I think the point is that you might make mistakes because you spent the entire night before preparing to talk about seatbelt safety, not other thing

Responding to this, Jacobs essentially says there gets to be a point where there are so many mistakes that it starts to look like it's not a mistake....

Jacobs reads the probable cause standard aloud. Reminds MJ that first magistrate thought complaint was sufficient for PC on its face.

Then he's done, and MJ announces we're going to break for lunch. We'll be back at 2:30!

While we wait...

Reminder that @lawfaremedia.org is a 501(c)(3) non-profit. If you're able to support our work, I hope you will! givebutter.com Also, if you haven't yet...subscribe to my Substack (it's free)! annabower.substack.com

We're about to get started with defense arguments.

First up: Counsel for Bradley Benavides.

We're still waiting for the magistrate to return, but a PowerPoint has materialized on screen.

It reads: "DIRECTIVE TO CHARGE IN SEARCH OF A CRIME: Case Study of the Dangers of a Political Prosecution"

And we're back.

MJ sets out roadmap for rest of the day. Wants to finish up arguments today even if we have to stay late. Says he thinks he won't need additional briefing, but does want transcripts. Doesn't think can make decision by tomorrow...will try to have one by Monday.

Safer, on behalf of Benavides, is at the lectern for argument now.

Wants to step back from the minutiae. These defendants are before you because they gave a defensive briefing, as they were mandated to do, to senators. Senators believed that interfered with their investigation...

Safer: The senators said this had nothing to do with Hunter Biden investigation...had to do with foreign influence...And then these former FBI officials were invited to come testify about that defensive briefing before the House. The letter said nothing about Hunter Biden.

Safer: Then they went before the House, and they were asked about Hunter Biden. It was 3 years after the fact. It wasn't about the subject they were summoned to talk about. It's remarkable there were as few statements that are even arguably misstatements as there were....

Safer: And then now the president has directed investigation of them. Then the FBI director did. Case agents being told do it, do it, do it [Safer slaps his own hand as he says this] -- a week before midterms.

And the "gotchas" are vacant. They are wrong. You will find they're not inaccurate.

A new slide appears on the screen. It reads as follows:

"Roadmap: - Not material - Not inaccurate - Any inaccuracy was not knowing or willful"

First, Safer addresses materiality.

He says materiality in affidavit depends entirely on Castor. He's unreliable for 2 reasons: (1) Political appointee, (2) This is a politically charged investigation. Zero possibility that that man gives the "wrong answer" -- there's a reason they went to him

Safer: Agent said repeatedly he would have liked to have asked people on both sides of aisle, but was precluded from doing so...

Castor also unreliable on substantive grounds. Agent said you would want someone -- need someone -- to judge materiality based on entirety of testimony.

But in fact he wasn't at Benavides testimony. He didn't even read it. And yet he's one who says that testimony affected investigation....

Safer: There's no evidence that the staffers who prepared the written questionnaire read the testimony, either.

Safer shows an excerpt from the questionnaire prepared by FBI, in which -- according to Safer -- the FBI inaccurately characterized Benavides' testimony, then asked committee Qs about it.

[Here's what I was able to type out from the excerpt of the questionnaire the FBI sent to the committee]:

Safer: Benavides did not deny knowing the FBI had the laptop. He shows another part of Benavides testimony in which he's asked about Laura Dehmlow's testimony about the laptop and replies he "does not recall" a specific moment in which he was told while at the FBI that FBI had possession of laptop

Safer shows another excerpt from transcript that's not in the affidavit and not given to Castor...in excerpt, Benavides says he *doesn't recall* being told that FBI had possession of laptop...point is that context matters..Castor didn't have context bc didn't read transcript, wasn't given transcript

MJ interjects: And it's not like these are classified documents, right? Like this transcript is something the general counsel of the committee could definitely get?

Safer: Exactly...

Still on materiality, we look at part of transcript in which scope is set out. Says Jordan requested hearing to look into FBI attempting to coerce social media companies into taking certain actions with respect to content on platforms...That was vast majority of testimony, Safer says. First 5 hours.

Safer discusses materiality of this alleged false statement regarding NY Post story about the laptop.

Safer: What possible materiality could there be as to whether he remembered a NY post story?? Nothing more needs to be said on that.

Similarly, Safer says his awareness of a Hunter Biden laptop *narrative* (which is what the question asked, Safer stresses) couldn't possibly be material....

Safer is on to this. Says that this is the one statement Benavides did get wrong -- he misremembered. But this statement was not given to or described to Castor, who is sole witness on materiality...And how could "discussions" be material, anyway?

Safer now pivots from materiality to his second major argument: that the testimony was accurate.

First, he says, there's no evidence in the affidavit that he was actually familiar with the NY post article. Zero. And then he goes on to say he was aware of a laptop narrative.

Safer moves to 3rd point: Any inaccuracy was not knowing or willful. Some points from his slide:

- There is no proof he knew and remembered. - Asked about conversation w/ intelligence officer John Brown, Benavides testified that he knew about laptop possession, but could not recall being told...

Continuing to argue that there's no proof of knowing or willful deception, Safer argues it's not a reasonable inference to think he was trying to be deceptive. He appeared voluntarily, had no motive, spotless record, decorate public servant..this is the face of a political prosecution.

Safer thanks the court for listening and wraps up.

Now Mary Dohrmann is up for Nikki Floris.

She begins: Nikki Floris is one of our nation's finest and most decorated public servants. That contrasts to the government's shoddy investigation and a complaint that lacks probable cause

Dohrmann: The agent himself said the investigative team "decided to find the strongest charges" against Floris.

Dohrmann goes over the probable cause standard. There must be fair probability that a crime occurred, not mere suspicion or reasonable suspicion. Has to be probable that a crime occurred. That standard not met here.

Dohrmann: Of particular importance to this case is looking at the affiant's ability to put potentially ambiguous questions into context....And magistrate must make the judgement that the charges are not capricious.

Dohrmann recites some basic facts elicited from the agent testimony: - He did not want to be on this case - He only learned basics of the intel world -- but, Dohrmann says, this isn't exactly the basics. Floris worked at the highest level. He would not be able to understand context sufficiently...

- Agent lack of understanding of materiality element important as well. Didn't know political makeup of committee...

Dohrmann: I don't have transcript yet, but I would guess that "assume" or "assumption" appears dozens and dozens of times in agent testimony....Assumptions are not reliable evidence. He assumes, for example, that Floris reviewed her testimony. Assumed she would recall details 3 years later...

Dohrmann: Agent himself inaccurately stated that Floris and Benavides testimony was sworn. In fact, it was not. And there were other inaccuracies. That wasn't the only one...

Agent Witt also testified that senior leadership in FBI directed investigation of her. This included weekly check-ins...

Dohrmann: Let's turn to the elements. The government must show that the statement was false, fictitious, or fraudulent. False or fictitious means it must be untrue when made & known at the time to be untrue by person making it. Fraudulent means it has to be untrue & made w/ intent to deceive

Dohrmann argues that in context Floris's statements were not untrue.

She first addresses this alleged false statement. Dohrmann says this isn't false. "Not at that time" clearly refers to date of defensive briefing on Aug. 6, 2020.

Dohrmann: Their smoking gun here

Dohrmann the alleged smoking gun here is this summary Floris sent in September 2020, after the defensive briefing

Dohrmann now discussing this alleged false statement. She argues that in counterintel work, being "involved" in investigation has specific meaning...different from being generally aware of HB investigation. The way counterintelligence thinks about investigations isn't that its about a person per se

Now on this alleged false statements.

Dohrmann: In the context of that single exchange, what does "at the FITF" mean? Does it mean location? Something else? Also, gov evidence supposedly contradicting this from 2021, after she was no longer FITF director...

Dohrmann pivots to said hypothetical laptop. The question here is literally a hypothetical. With many parts. There is no falsity.

Dohrmann next says that she wants to skip materiality for the moment and move to willfulness.

The agent testified that at one point Floris celebrated the recall of the Albany IIR, and that could be motive.

Dohrmann: I don't know what celebrate means in this context, but it's another assumption..

MJ: I know he testified to that, but do I have any evidence of those celebrations?

Dohrmann: Other than agent testimony, no

Dohrmann: Finally, why would Floris -- why? -- if she knew that the federal gov had possession of her communications, if she remembered them, why would she lie?

So there is not a fair probability of willfulness to sustain probable cause.

Dohrmann: These alleged false statements took place at an interview that was not supposed to be about these questions....And to conclude on mens era, the government's own witness said on the witness stand that his affidavit contained a false statement -- that Floris and Benavides had been sworn...

Dohrmann addresses materiality. On this element, her slide says that the government must explain *how* the statement could affect a *specific* decision or function of the committee.

Dohrmann: This element is completely vitiated by the fact that the affidavit relies on a single political actor....and Castor interview took place only *after* this case was charged. Had not talked to the staffer prior to this case was brought...

Dohrmann: One last point about Castor is that his answers proclaim materiality to a broader impeachment inquiry that wasn't opened until 2 months later.... [I think this is reference to the written responses in which Safer displayed earlier today...I was only able to catch some of it:]

Dohrmann, who seems to be wrapping up, again underscores Floris's decades of public service...quotes famed jurist Robert Jackson. Her voice shakes with emotion, as if she is close to tears....

Dohrmann, her voice steady again: Given the totality of circumstances, there is not fair probability that any false statement was made...thank you.

She returns to the defense table.

MJ turns to DOJ. He says he wants to understand the timeline regarding DOJ's communications with the committee. You received written answers before 1st complaint?

DOJ says yes...then interviewed Castor on Monday.

MJ: Did you have to have *any* info from the committee to determine materiality? We had disclosure that Davis said need someone who was in Benavides testimony...Can someone who was not there answer materiality?

Jacobs: Yes, as long as person authorized to speak on behalf of body...

MJ: I get what you're saying is that person acts like an expert. They review materials, say here is my conclusion. I want to know without that. If you didn't have Castor, could you charge this case?

Jacobs: I think you would need some prima facie evidence....

MJ: Bc I don't think an FBI agent could speak to materiality...I just wanted opportunity to say out loud what I'm thinking,...but general counsel is different story, and as I understand it he was there for Floris testimony...

Now MJ wants to hear from DOJ on rebuttal. Kirkpatrick makes his way to the lectern.

Kirkpatrick: The chronology of what happened is that NY post story breaks, FITF fails in job at refuting that idea that laptop is Russian disinformation. FITF failed, so can understand why would want to minimize..

Kirkpatrick: I understand these defendants are busy. But there's a difference between no and I don't know. The defendants here said unqualified "no." The defense is asking far too much a this stage....defense had opportunity to put evidence on if it wanted to, but didn't. Could've called Millitello.

Kirkpatrick: The defense is making a mountain out of molehill on materiality. Fair to say man who oversaw the investigation knew what was going, what was material....

A lot of the materiality points go to the truth points, so will start with that and respond to some of those.

Kirkpatrick: Safer wrt to the NY post article said there's zero evidence he knew about it...but Benavides was involved in FITF response to story....is it possible he forgot about it? Sure, but that's for trial, not this stage on probable cause....

Kirkpatrick: With respect to Wikipedia article...Benavides was involved in conversations and meetings showing that he knew the FBI was in possession of laptop.

As to the John Brown evidence, defense argued that Benavides qualified his statements, owned up to knowing about possession of laptop.

When it comes to question with John Brown, he shut down further questioning by saying he inferred from convo that FBI had possession, but by doing so he shuts down further questions by saying he has no personal knowledge of it...

Kirkpatrick: I think the defense argument that the affiant was inaccurate when he said testimony was sworn isn't as clear cut as the make out...I think testimony could be considered sworn even if not under oath...would have to do some research on that...

Kirkpatrick: Defense simply asks too much for probable cause hearing. The stuff about what "involved" means...there is no evidence.

MJ: I'm not considering things for which there is no evidence...not to push you along, but just so you know.

Kirkpatrick: As to materiality, clear it was important, this was big news, FITF had role in election intelligence/counterintel....Senators made statements about it

MJ: But the only evidence I have is what Castor says. That's all I'm considering...

MJ: I want to make sure I'm clear. The motive you are alleging is that FITF had role to protect from foreign influence, and it incorrectly assessed that laptop was Russian disinformation....so if they accurately answered questions to Congress, it would reflect they made mistake at FITF?

Kirkpatrick: I think that's right

MJ: And then you have the other part about this being a sitting president's son at the time of testimony?

Kirkpatrick: that's right...

Cory Jacobs is up now for DOJ to address a few other matters. Jacobs wants to emphasize that just bc someone is asked about a different question that's not in scope of stated purpose, they don't get free pass to lie to Congress.

MJ: I think maybe it's somewhere in between...

Jacobs concludes by saying there is ample evidence of probable cause. Adds there was exceptional lawyering by defense counsel...incredible lawyering, the slide decks, everything. The fact we're here on day 3 underscores the complexity...suggests there is probable cause. Doesn't mean a crime, but PC

Jacobs: Want to also put on the record bc it was suggested the FBI did not speak to the defendants. But want it on record that defendants can reach out, talk anytime they want...

Now Safer is back up at the lectern. He says that US made misrepresentation about motive. FITF never made determination that alleged HB laptop was part of Russian disinformation. He then points to Benavides email that says "FBI has not made determination" about whether laptop was disinfo...

Safer: They said the motive in this case is that defendants got ir wrong. There was no assessment. They never made that determination. The defensive briefing was completely unrelated to the laptop. It was about Russian disinformation. But not laptop. Senators mad it had nothing to do w/ laptop...

Kirkpatrick responds to this, saying he made nuance of FITF role in election disinformation abundantly clear...sufficient nuance, not misrepresentation....would direct your honor to those statements.

Magistrate Judge Faruqui is ready to wrap up. Says he will try to have a decision by Monday morning. Thanks the parties for their work...

And with that, we are FINALLY done.

Thanks to all who stuck around. What a marathon!!

See you all back here tomorrow for the James Comey hearing? (I can't live post bc the judge refused to open media room, but we will have updates ASAP after hearing.) 🫡 givebutter.com