The government in the Proud Boys J6 trial seems to be misleading the defense and the court about the existence of informants or Confidential Human Sources (CHS). A new emergency motion from the defense counsel in the Zachary Rehl case states the government waited until March 22 to tell the court that one of the defense witnesses has been a CHS “since April 2021 through at least January 2023,” or since the beginning of the case through the start of the trial. March 22 happens to be the day before the CHS was scheduled to testify for the defense. According to reporting from Julie Kelly, “prosecutors knew back in December that defense planned to call this person as a witness…and the individual continued to work as an informant, spying on defense, during trial prep.”
The revelation prompted Proud Boys’ public defender, Carmen Hernandez, to file an emergency motion requiring the government to “disclose to the defense all reports and recordings” relating to individuals who may have been FBI informants. The four other Proud Boys defendants, Ethan Nordean, Joseph Biggs, Enrique Tarrio, and Dominic Pezzola, joined in Hernandez’s request. Enrique Tarrio was the national chairman of the Proud Boys organization. Zachary Rehl has been denied bail for two years by Judge Tim Kelly despite being a non-violent participant in the J6 protest. Rehl was president of his local chapter of the Proud Boys. Judge Kelly ordered a response from D.C. U.S. Attorney’s office by 9 am. Thursday.
Can’t wait to see DOJ say “AKSHUALLY there’s no law preventing FBI from using informants to spy on defendants and their lawyers.”
— Julie Kelly 🇺🇸 (@julie_kelly2) March 22, 2023
At 1:45 EST on Thursday, March 23, Kelly reported that the D.C. U.S. Attorney’s office failed to make any records related to the CHS public. Kelly stated there is a “missing document in the numerical list on the docket,” which indicates the DOJ response is “under seal.”
Confirmed: @USAO_DC response to defense motion seeking production of all records related to an FBI informant who infiltrated and surveilled defense team (and possibly family members) will not be made public. https://t.co/srbYc36yLJ
— Julie Kelly 🇺🇸 (@julie_kelly2) March 23, 2023
What Does March 22 Emergency Motion Reveal?
Court papers reveal that the CHS has been in contact with defense counsel and at least one defendant. In a stunning revelation, the documents show the CHS has communicated through a variety of channels with the defense and the defendant and “also participated in prayer meetings with members of one or more of the defendants’ families.” The CHS also allegedly discussed replacing one of the defense counsels with one of the defendant’s family members. It seems the government has been selective with the defense about the disclosure of CHSs. Some were fully disclosed earlier, and others were somehow conveniently undisclosed until now. As a result, the Proud Boys’ defense lawyers are beginning to doubt “the veracity” of the government’s explanations regarding withholding information about CHSs.
This is starting to sound worse than Whitmer fednapping hoax.
Graves' office continues to mislead court and defendants about actual number of FBI informants (CHS).
Could be dozens as far as anyone knows. pic.twitter.com/gV7G86H8tW
— Julie Kelly 🇺🇸 (@julie_kelly2) March 22, 2023
Lead Investigator Admits FBI Informants Communicating with Zachary Rehl
Julie Kelly reported on March 14 that Nicole Miller, one of the lead FBI investigators assigned to the Proud Boys case, allegedly exchanged emails with another agent proving “the FBI monitored privileged communications between one defendant and his attorney in 2021.” The admission came as a result of questioning from defense attorney Nicholas Smith on March 8.
Interestingly, jurors in the case never heard the full scoop because Judge Kelly jumped on the testimony and “abruptly dismissed the jury,” saying he wanted “to press pause on the trial.” The jury trial was set to resume the next day, but it never did. Instead, on March 9, Kelly decided to hear both sides without the jury present. Julie Kelly explains:
“Kelly, outside the eyes and ears of the jury, held a hearing with both sides on March 9 to determine how to proceed after the defense team uncovered messages indicating FBI agents doctored internal reports, destroyed evidence, and tipped off prosecutors about defense strategy on the government’s highest-profile January 6 case.”
Miller had prepared a spreadsheet of “Jencks” material to catalog “internal messages” related to the case. According to Kelly, “roughly 12,000 rows of messages were hidden behind a tab and found by the defense.” One of the messages was allegedly from a CHS to Miller asking her to go back into the report “and edit out that I was present.” Miller complied with the request, according to Kelly’s reporting.
Kelly also reported another agent told Miller an FBI supervisor “instructed the unidentified agent to destroy “338 items of evidence.” Miller reacted with the words, “OMG INSANE.” Prosecutors allegedly insisted that the disposal of evidence was “routine” and related to “evidence in a 20-year-old case that had been closed.” According to Kelly, the defense also found discussions between Miller and another agent discussing emails between Rehl and his former attorney Jonathan Moseley.
Kelly points out what should be obvious to most. Why were FBI agents “spying on email correspondence between a defendant and his attorney and then apparently sharing that intelligence with prosecutors?” Attorney/client privilege is a protection all Americans should enjoy. However, it appears the Proud Boys and other J6 defendants are exempt from those and other protections. According to Kelly, the prosecution allegedly explained the breach of confidentiality away by stating, “Rehl waived any privilege” by using the detention center’s “monitored email system to communicate with his attorney.”
*Julie Kelly will join the Dark to Light Podcast on Monday, March 27, 2023, at 8:30 am ET to discuss this and other J6-related news.