Defense attorneys in the Proud Boys seditious conspiracy trial in Washington learned late on March 22 that one of their own defense witnesses who was about to testify had worked as an FBI informant for at least 22 months.
They asked for an emergency hearing before U.S. District Judge Timothy Kelly and filed a motion to compel the U.S. Department of Justice to disclose whether the witness has been spying on the defense team.
Kelly suspended the trial until March 24 and converted March 23 from a day of testimony into a motions hearing.
Zachary Rehl, one of five Proud Boys defendants, filed a motion on behalf of his co-defendants seeking a court order to compel prosecutors to disclose any recordings or reports made by confidential human sources (CHS)—informants—about the defendants and their attorneys.
Defense attorney Carmen Hernandez said the information given to the defense team on March 22 raises “serious and substantiated allegations of governmental misconduct surrounding the surreptitious invasion and interference of the defense team by the government through a confidential human source, at the government’s behest.”
Kelly ordered prosecutors to file a response to the motion by 1 p.m. EDT on March 23. A hearing on the matter will begin at 3 p.m.
The trial began on Dec. 19, 2022, in U.S. District Court. Prosecutors wrapped up their case on March 17.
Defense Witness Was Prosecution Informant
After the close of testimony on March 22, prosecutors disclosed that a witness on the defense list who was due in court on March 23 had worked as an FBI informant from April 2021 until at least January 2023.
“During this period of time, the CHS has been in contact via telephone, text messaging, and other electronic means, with one or more of the counsel for the defense and at least one defendant,” the motion reads.
“The CHS also participated in prayer meetings with members of one or more of the defendants’ families. The CHS also engaged in discussions with one of the defendant’s family members about replacing one of the defense counsel.”
Defendants in the trial include Rehl, former Proud Boys Chairman Enrique Tarrio, Joseph Biggs, Ethan Nordean, and Dominic Pezzola.
The men are accused of seditious conspiracy, conspiracy to obstruct official proceedings, obstruction of official proceedings, and conspiracy to prevent certain federal officers from performing their duties at the U.S. Capitol on Jan. 6, 2021. Tarrio, Rehl, Nordean, and Biggs face nine criminal counts, and Pezzola is charged with 10.
Disclosure of the FBI informant demonstrates “that there are reasons to doubt the veracity of the government’s explanation and justification for withholding information about the CHSs who have been involved in the case,” Hernandez wrote.
It was the second time in March that privileged attorney-client communication became the center of controversy.
On March 8, FBI Special Agent Nicole Miller disclosed that investigators had been monitoring communications between Rehl and his now-former attorney and discussing his trial strategy among themselves.
Defense attorneys also discovered a hidden tab in an FBI evidence spreadsheet containing some of Miller’s emails, “in which the FBI agent admitted fabricating evidence and following orders to destroy hundreds of items of evidence,” according to a March 9 court filing (pdf).
The defense motion called the discovery “a clear and flagrant Sixth Amendment violation” that “screams for a dismissal.”