The messages caused a stir last week after defense attorneys began questioning a witness about several FBI messages that prosecutors say contain classified information, according to POLITICO. Defense attorneys allege that prosecutors may be attempting to hide information damaging to their case behind classification barriers.
The government’s seditious conspiracy case against five Proud Boys leaders – Joe Biggs, Ethan Nordean, Dominic Pezzola, Zachary Rehl, and Enrique Tarrio – is one of the most important trials surrounding the January 6 riot, prosecutors say. The trial, which has already undergone numerous delays, was put on hold again last week after prosecutors handed over thousands of messages sent and received by FBI Special Agent Nicole Miller, one of the lead investigators into the Proud Boys’ possible involvement in the January 6 breach.
The unintentional disclosure happened when prosecutors shared a file of messages retrieved from the FBI’s secure messaging system regarding prosecutors’ questioning of Miller. Prosecutors received the messages first from Miller, who obtained the messages through a filter on the FBI system; however, the filter also picked up some messages that prosecutors say are not pertinent to the case and should not have been released. Those messages were accidentally left in “hidden” rows of an Excel spreadsheet turned over to defense attorneys.
The disclosure came to light Thursday after Nordean’s defense attorney, Nicholas Smith, began cross-examining Miller about the messages. Prosecutors objected, and U.S. District Court Judge Tim Kelly dismissed the jury until prosecutors and the defense could work out the disagreement.
The messages, defense attorneys say, suggest serious misconduct by the FBI related to the case against the Proud Boys defendants. Defense attorneys pointed to a conversation Miller and another agent had about one defendant’s decision to fight the government’s charges. Miller had learned about the defendant’s decision from messages the defendant, Rehl, had sent to his attorney, which defense attorneys say suggests a breach of attorney-client privilege.
Other messages that defense attorneys said looked suspicious included a message from one FBI agent asking his name be omitted from a report about a meeting with a confidential human source, an FBI agent’s opinion about the strength of the prosecution’s case against the Proud Boys, and discussion of an order to destroy 338 pieces of evidence.
Prosecutors responded to questions about the messages in a Sunday filing. On Monday, Judge Kelly blocked the defense from questioning Miller on most of the messages, calling the kerfuffle over the mistakenly revealed communications “much ado about nothing” if prosecutors’ explanations are correct.
Kelly allowed questioning on the FBI agent who requested his name be omitted from a report on a meeting with an FBI source. The judge blocked questioning on the other concerns unless defense attorneys could supply persuasive arguments rebutting the Justice Department’s claims about the hidden messages.
Prosecutors said Sunday in an 18-page filing that the defense team’s chief concerns are without merit and each “poses a substantial risk of confusing the jury and unfairly prejudicing the government.”
On the alleged breach of attorney-client privilege, the Justice Department said that Rehl waved his Sixth Amendment rights because the conversation “took place over a monitored jail email system that was subject to routine monitoring, which was made known both to the inmate (who had to sign an acknowledgment upon registration and click an acknowledgment each time he used the system) and to the attorney.”
The prosecutors dismissed the FBI agent’s assessment of the case against the defendants under prior court rulings. “As the Court has already explained, it is improper for counsel on either side to elicit testimony about an agent’s opinion on the strength of the evidence,” the filing says.
On the destruction of evidence, the Justice Department said the conversation was related to a 20-year-old, multi-co-defendant trial and not part of a malicious attempt to destroy evidence related to any January 6 prosecution.
The requested editing of the FBI source report, prosecutors said, resulted from a misunderstanding by the FBI agent who made the request.
Smith, Nordean’s attorney, filed a motion on Sunday raising questions about thousands of additional lines of messages that the Department of Justice removed from the Excel spreadsheet.