I Used to Work at the DOJ. Nobody Is Talking About the Scary New Tactic It’s Using to Target Trump Foes.

Jurisprudence Photo illustration by Slate. Photos by Kevin Dietsch/Getty Images and Dia Dipasupil/Getty Images. Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—and how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. Late last month, the Justice Department did something unusual, unnecessary, and capable of being explained only if one considers the political context. This sentence could refer to any number of actions undertaken by the department in recent months. However, what occurred on Oct. 23 went mostly under the radar, as political considerations clearly hijacked federal law-enforcement strategy in a disturbing new way. I am referring to the DOJ’s charging of two former FBI officials, Nikki Floris and Bradley Benavides, with, in 2023, making false statements to the House Judiciary Committee about their involvement in and knowledge of the FBI’s investigation of Hunter Biden—charges that, on Monday, a federal magistrate judge dismissed. My focus is not on the substantive merits of the charges, the government’s exercise of its prosecutorial discretion to pursue these charges, or the close-to-an-election timing of the initiation of the prosecution. Rather, I am struck by the way the government began the case—by presenting a 27-page affidavit (sworn by an FBI agent) to a magistrate judge and thus obtaining a criminal complaint. Using this procedure—one normally reserved for the most urgent cases—was a grossly political maneuver. This action is a troubling signal of how the DOJ might operate going forward. Most federal criminal cases start when a prosecutor calls one or more witnesses before a grand jury, establishes probable cause, and persuades the grand jury to return an indictment. After an indictment is returned, the case is set for trial. Before trial, the defendant has no right to challenge the grand jury’s probable-cause determination. Unlike in civil cases, a criminal defendant’s first chance to test the evidence itself comes before the jury. Occasionally, prosecutors will need to initiate charges more quickly than the grand jury’s schedule allows. A grand jury, however, might convene only once a month, requiring the need for an expedited procedure. If, for example, someone detonates a bomb at the federal courthouse, there is an obvious need to ensure that the culprit is immediately detained (and thus not able to flee or cause further injury). We don’t want prosecutors to have to wait until the grand jury’s next meeting to get the person off the street. The law fills this gap by authorizing prosecutors to seek criminal complaints. A complaint is a sort of temporary charging document. A prosecutor obtains it by presenting to a federal magistrate judge a probable-cause affidavit signed by an investigator. Based on the affidavit’s content, the judge finds probable cause and signs the complaint. The agents then arrest the defendant, bring them before the judge, and, almost always, ask that the defendant be detained. After all, the whole point of a complaint is to get off the street someone who is potentially dangerous or likely to disappear. If neither consideration is present, then prosecutors generally wait to present the case to the grand jury. Even if a prosecutor obtains a complaint, the complaint is valid for only, in most cases, 30 days. After 30 days, unless a plea agreement has been negotiated, the prosecutor still must go to the grand jury. Aside from adding an extra step and thus more to the prosecutor’s workload, complaints can also be strategically costly. This is because, unlike an indictment, a complaint entitles a defendant to a preliminary hearing. At that preliminary hearing, the defendant can challenge the government’s probable-cause evidence by cross-examining the government’s witnesses. Even if the magistrate judge finds probable cause, the fact that the preliminary hearing occurred can pose problems down the road. This is because cross-examination can result in a key witness making a minor misstatement or offering a defense-friendly admission. If this occurs, the preliminary hearing transcript will be valuable when that witness testifies at trial. As I noted earlier, the government initiated the Floris and Benavides case by obtaining such a complaint. To my knowledge, neither posed any threat or flight risk. This is evidenced by the fact that the government did not seek to detain either defendant. Nevertheless, because it obtained a complaint, the government had to endure a multiday preliminary hearing during which the investigating agent was subjected to cross-examination by each defendant’s attorney. The plan then backfired in embarrassing fashion when the judge determined that the evidence the government mustered was insufficient to establish probable cause to support the charges. Why, then, did the government charge the defendants in the way it did? There appears to be no basis to support this strategy. Perhaps the government’s attorneys feared they might fail to obtain an indictment from a grand jury, as has occurred in other politically charged cases. However, this fear cannot explain their decision. As explained above, the complaint here merely hastened the defendants’ first court appearance. It did not negate the need for the government to go before the grand jury. Had the government skipped the complaint step and gone straight to the grand jury and there succeeded in obtaining a grand jury indictment, absent some government misconduct, a judge would have been obligated to allow the case to proceed to trial no matter how grave the judge’s concerns about the merits of the case. However, if the overriding goal of this endeavor was scoring political points—or pleasing an audience of one—then the government’s choice may make sense. As noted above, the government’s attorneys obtained the complaint by presenting a magistrate judge with a 27-page affidavit. The affidavit describes, in painstaking detail, the FBI’s investigation of the former president’s son, the defendants’ involvement in that investigation, and the defendants’ various interactions with congressional committees. The granularity is typical for a complaint affidavit, but it goes far beyond what would traditionally be included in an indictment returned by a grand jury. An indictment charging a false-statement offense would usually contain nothing more than an identification of the defendant, the date of the offense, the location where the offense occurred, and the specific false statement. In contrast to the 27-page affidavit, an indictment would be no more than a page or two—and would provide no color for television commentators, candidates for office, and the president. In short, the department made an unusual and likely unwise strategic decision so that it could issue what was, in effect, a press release harping on one of the president’s favorite themes. Similar motivations may have led to the most recent effort to prosecute former FBI Director James Comey. On Oct. 5, government prosecutors filed an information charging Comey with violating and conspiring to violate a criminal provision found in the Espionage Act. An information, unlike a complaint, can be filed by the government without any judicial approval and without the vote of the grand jury. However, it can form the basis of a prosecution only if the person charged waives his or her right to have the grand jury make a probable-cause determination. Comey, needless to say, is unlikely to do so. Why, then, did the government file the information? Ostensibly, the prosecutors acted to prevent the statute of limitations from expiring. They apparently did not think their case was yet strong enough for a grand jury presentation but recognized that if they did not do something, the 10-year statute of limitations would have expired on Oct. 5 of this year—hence the filing of the information. The problem with this explanation is that it is doubtful that the government’s information prevented the statute-of-limitations period from expiring. As Comey’s attorneys argued in a motion to dismiss the information, the applicable statute of limitations, found in the Espionage Act, requires an indictment to be returned within 10 years of the crime and does not contemplate an information doing the trick. The government countered that the general federal statute of limitations, applicable whenever a criminal provision does not specify a limitations period, appears to permit an information to toll, or pause, the limitations clock. However, this argument runs counter to the plain language of the act’s offense-specific limitations provision. Once again, why would the government use an unconventional method to commence a high-profile prosecution, particularly when the method rested on legally shaky grounds? Perhaps the information, like the complaint affidavit, had been written with a public audience in mind. These events remind me once again that this is not the department for which I proudly served. If the DOJ is nothing more than a mouthpiece of the White House, then it is unclear to me who is left to do the essential work of evenhandedly enforcing our nation’s criminal laws. Department of Justice Donald Trump James Comey Jurisprudence Hunter Biden