WASHINGTON — A top aide to U.S. Attorney Jeanine Pirro said in a phone call Monday night that prosecutors had made a “f—up” in a high-profile criminal case against two former FBI officials, an agent who’s been investigating the case testified Thursday.
The former officials, Nikki Floris and Bradley Benavides, were initially charged last week with making false statements to Congress about their level of knowledge about an investigation of Hunter Biden’s laptop.
A sworn affidavit attached to the complaint by Special Agent Ryan Witt cited a congressional staffer who was present for both Floris’ and Benavides’ testimony — but it turns out the person was only present for Benavides’, Witt testified at a preliminary hearing on whether there’s probable cause to charge the pair.
Witt told Magistrate Judge Zia M. Faruqui that he called the congressional staffer on Monday and was later joined on the call by Pirro aide Carlton Davis and Pirro, the top federal prosecutor for Washington, D.C.
Audio of that conversation was turned over to Benavides’ attorney, Ron Safer, who read parts of the exchange in court and asked Witt whether it was accurate.
At one point, Davis told the staffer, House Judiciary Committee general counsel Steve Castor, “This is our f—up,” and asked for his help finding someone who had been present for the testimony, Witt confirmed.
Witt added that he still has not been able to speak to anyone who was there.
Later Monday night, prosecutors filed what they called a superseding criminal complaint and a new affidavit, neither of which was signed by any law enforcement officer or judge. Faruqui tossed the complaint on Tuesday.
On Wednesday, one of the attorneys for the defense asked Witt if it was unusual for a case alleging defendants made false statements to use an affidavit containing false statements — a question the judge cut off.
Davis, who is listed as a special counsel in Pirro’s office, was involved in the failed effort to indict six sitting members of Congress over their comments in a social media video where they urged members of the military not to follow illegal orders. Davis previously worked as a Republican staffer on several committees, including the House Select Committee on Benghazi.
Witt was on the stand in the case for a third day.
He testified Tuesday that he was assigned to the case in July after FBI Director Kash Patel sent a letter directing the Kansas City, Missouri, office to look into certain people, including Floris.
The direction came a day after President Donald Trump delivered an Oval Office address in which he complained that “rogue bureaucrats” had suppressed information about China’s efforts to interfere in the 2020 election, which he falsely claims was “stolen.”
Both Floris and Benavides were involved in FBI efforts to secure the election and have long been targets of criticism from Trump’s allies.
Witt said he was unhappy with the assignment, in part because “I had concerns that this would be viewed as political.”
Witt said Wednesday that top FBI brass, including Patel, had been checking on progress in the case through in-person meetings, videoconferences and updates pushed through their special agent in charge. Witt said both FBI deputy directors — Chris Raia and Andrew Bailey, who recently resigned — were involved.
“The evidence in this case speaks for itself [as] to the effect that kind of pressure has on sensitive investigations like this one,” Floris’ attorney Mary Dohrmann told the judge Thursday.
She said there were other mistakes in the affidavit as well, and that some of the false statements her client was alleged to have made were presented stripped of necessary context.
Safer, Benavides’ attorney, told Faruqui that in most instances, calling something a political prosecution is a talking point, but not in this case.
“That is the price we pay to allow politics to infect the process,” he said.
The judge said he plans to issue a written ruling Monday morning.
