Prosecutors in the Proud Boys seditious conspiracy trial on Sunday hit back at defense attorneys who had accused the government of wrongdoing after defense attorneys stumbled upon thousands of inadvertently disclosed messages sent to an FBI agent who was involved in the case.
The agent, Nicole Miller, gave extensive testimony last week about the Proud Boys’ march to the Capitol on January 6, 2021, detailing their tactics and moves as they navigated the National Mall and became the spearhead of the riot that sparked the transfer of presidential power. After she finished speaking, prosecutors provided a routine piece of evidence to defense attorneys: Miller’s internal FBI chat messages about the case.
But as they sifted through the 25 lines of messages, defense attorneys discovered that prosecutors had accidentally delivered thousands of additional messages — mostly sent to Miller by other FBI agents — that had been left in the spreadsheet as “hidden” rows. Miller had tried to filter them out of the production while searching for relevant information, prosecutors indicated.
However, defense attorneys said the filtered messages contained significant and suspicious exchanges that appeared to be related to the incendiary conspiracy against their clients.
In conversation, Miller and another agent discussed learning of Defendant Zachary Rehl’s plan to take the case to trial, in part because they had reviewed communications between him and his attorney at the time, Jonathon Moseley. The defense attorneys said that on the face of it, it appeared to be a violation of attorney-client privilege.
The attorneys also cited several other exchanges they considered suspicious: a message from an agent requesting that his name be removed from a report of a meeting with a confidential human source; an FBI agent’s opinion of the strength of the Proud Boys conspiracy case; and a message from an agent discussing an order to destroy 338 pieces of evidence in an unidentified case.
Defense attorneys said they should be allowed to grill Miller on any of these topics when the trial resumes this week. The hidden messages caused a stir Thursday when Nicholas Smith, attorney for defendant Ethan Nordean, began questioning Miller about it. Prosecutors objected and later indicated that they believed there had been a “spilling classified information in the messages — a claim that the defense attorneys worried was a pretext to drop their review. U.S. District Court Judge Timothy Kelly called off the trial for Friday to give the Justice Department and defense a chance to clarify the issues.
In a Archive of 18 pages On Sunday, prosecutors went through every issue raised by the defense attorneys and suggested their allegations were baseless — and not part of any attempt to withhold relevant evidence in the case.
For example, the request for an edit of the report regarding the confidential human source was an “administrative” matter where an agent who had been promoted to a supervisory role requested to be removed from the report because he was no longer associated with the source was in progress — a request that was eventually withdrawn, prosecutors said. An officer’s comment about destroying evidence related to an unrelated “20-year-old multi-co-defendant trial” that concluded long ago, Justice Department lawyers said.
“As the Court knows, the removal of evidence is a routine part of the life cycle of any criminal case,” the prosecutors wrote.
Prosecutors also rejected the idea that Miller and other agents had access to privileged attorney-client information.
“She did no such thing,” they argued, “both because all privilege was waived and, in any case, even assuming… that the email to which the other agent referred contained privileged information, no privileged information passed to Special Agent Miller. ”
The exchange between Rehl and his attorney that the officers discussed was sent between Rehl and Moseley, his former attorney, who has since been disbarred, through an email system at the prison. That system explicitly notifies users that it is monitored and that emails between an attorney and client are “not treated as privileged.” Prisoners are supposed to use special legal mailing procedures, legal phone calls or face-to-face meetings to communicate confidentially with their lawyers.
“Rehl waived any privilege by knowingly using FDC-Philadelphia’s monitored email system to communicate with his attorney,” the prosecutors argued.
Prosecutors also rejected attempts by defense attorneys to enter a message from an FBI agent suggesting he harbored doubts about the strength of the evidence of conspiracy in the Proud Boys case. Usually such opinions are ruled out by officers, and in any case, they say Miller contradicted the doubting agent’s comment by saying, “No, we can. We can DEF now.”
Kelly will decide Monday whether Nordean’s attorneys, Rehl and their three co-defendants — Enrique Tarrio, Dominic Pezzola and Joseph Biggs — will be allowed to question Miller on these topics. Prosecutors argued on Sunday that their unsuccessfully implemented decision to withhold the messages — even those pertaining to the Proud Boys case — was correct. Precedents and laws, they said, required the government to hand over only material related to what Miller testified on the witness stand, not every statement she made about the Proud Boys case in general.
Miller testified last week after the furor broke out that FBI headquarters collected her messages for her and pulled them from a secret classified system. She filtered out all messages from other agents and then manually deleted messages she felt were not subject to disclosure, including many about other matters. But when prosecutors bagged up the remaining messages, they didn’t seem to realize that other officers’ filtered messages had been left in the spreadsheet as “hidden.”
Assistant U.S. attorney Jocelyn Ballantine, the supervising prosecutor in the case, told the court Friday that the Justice Department was concerned that the hidden messages may contain classified information, as they came from the secret-level system and not were fully vetted. Ballantine in particular was concerned that the message regarding destruction of evidence was sent by an agent involved in “secret” activities and could refer to classified information.
It is unclear whether defense lawyers will be satisfied with the government’s responses. They have previously raised the alarm that prosecutors would use the pretense of “secret” information to recover damaging evidence. Prosecutors on Sunday said they removed just 80 rows of “secret or sensitive” messages from a production of nearly 12,000 rows. In addition, they suggested that they provided additional messages to put the messages cited by the defense into context.
Smith, one of the defense attorneys, admitted in a Submit Sunday that the government also removed about 6,000 rows of messages that it said were blank, leaving just over 5,000 for the defense to review. And he said he asked prosecutors to clarify how many of the 80 substantial rows of deleted messages were classified and how many were “sensitive” but not classified.
Smith said he should be able to question Miller about her handling of the messages, in part because of her responses to a short series of questions about them on Thursday, when she indicated she had not removed or filtered out relevant material.
“Whether the agent gave truthful testimony about her legal obligations in relation to her work on this case is clearly a matter of credibility,” Smith wrote.
While cross-examination typically only addresses the content of a witness’s direct testimony, Smith pointed out that he was also allowed to ask questions about a witness’s credibility, which he said made the treatment of those reports fair for questioning .
Prosecutors said if defense lawyers were allowed to question her at all about the unsuccessfully withheld reports — a move largely opposed by the government — it would have to be done during the defense trial, which begins in the next two weeks, not during a cross-examination during the government’s case.
“The issues at stake are miles beyond the scope of Agent Miller’s direct testimony,” prosecutors argued.