WASHINGTON – As revelations that a defense witness was also an FBI informant roil the already contentious Capitol riot trial of members of the far-right Proud Boys group, prosecutors said Thursday that the informant was never told to gather information about the defendants or their lawyers.
The FBI ended its relationship with the informant this past January after it learned that the person had received a subpoena to testify, an agent said in an affidavit filed in court.
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U.S. District Judge Timothy Kelly said there's no clear evidence of wrongdoing by the government and allowed the trial to continue Friday, but is also set to hear additional arguments about how deeply enmeshed the informant was with the case.
The government only found out from the defense team that the informant had been communicating with the defense and had participated in “prayer meetings” with relatives of at least one of the Proud Boys on trial, prosecutors said. They called suggestions of government misconduct “baseless.”
The revelation came Wednesday when defense lawyer Carmen Hernandez said in court papers that the defense team was told by prosecutors that afternoon that the witness they were planning to call to the stand on the next day had been a government informant.
“From our point of view, this is alarming, shocking, troublesome,” Hernandez, who is representing Proud Boy Zachary Rehl, during an emergency hearing on the matter held after the judge canceled testimony for the day.
The informant had been set to testify for former Proud Boys leader Enrique Tarrio and had met with his lawyers in preparation for testimony. The informant also had defense contacts, including sending a “constant drumbeat” of unsolicited messages to one lawyer and recommended potential witnesses to another.
“I've lost confidence in the process,” said Norman Pattis, who said the informant had more than two dozen calls with his client, including about legal issues.
It’s the latest twist in the trial, which is one of the most serious to emerge from the Jan. 6 attack that halted Congress' certification of President Joe Biden’s victory, sent lawmakers running and left dozens of police officers injured.
Tarrio, Rehl and three other Proud Boys — Joseph Biggs, Ethan Nordean and Dominic Pezzola — are charged with seditious conspiracy for what prosecutors allege was a plot to block the transfer of presidential power from Donald Trump to Biden after the 2020 election.
Tarrio, a Miami resident, served as national chairman for the far-right extremist group, whose members describe it as a politically incorrect men’s club for “Western chauvinists.” He and the other Proud Boys could face up to 20 years in prison if convicted of seditious conspiracy.
Prosecutors said the FBI was “generally aware” that the informant was "active in assisting defendants charged with crimes related to the January 6, 2021 attack on the U.S. Capitol and their families, including by assisting in fundraising efforts and protesting against their conditions of confinement,” prosecutors wrote.
But investigators “intentionally chose to never ask” the informant about the person's relationship with Tarrio or any other defendants or lawyers involved in the case, they said.
"That certain defendants or defense counsel chose to communicate with the (confidential human source) about matters related to this prosecution is a decision made by them. However, the government in no way orchestrated such alleged voluntary interactions," prosecutors wrote.
Defense lawyers didn’t name the informant in their court filing, but said it is somebody who served as an informant for the government from April 2021 through at least January 2023, though the original contact dated back to 2019.
The Justice Department considers the situation “very serious," and has shared documents in an effort to show the informant was never asked for any information about the trial defense, said Denise Cheung, acting deputy chief of the criminal division, at the hearing.
It’s not the first time the government’s use of informants has become an issue in the case. Defense attorneys have repeatedly pushed to get more information about informants in the far-right extremist group as they try to undermine the notion that the group had a plan to attack the Capital on Jan. 6.
FBI Agent Nicole Miller testified last week that she was aware of two informants in the Proud Boys, including one who marched on the Capital on Jan. 6.
Law enforcement routinely uses informants in criminal investigations, but their methods and identities can be closely guarded secrets. Federal authorities haven’t publicly released much information about their use of informants in investigating the Proud Boys’ role in a mob’s attack on the Capitol on Jan. 6.
Nordean, of Auburn, Washington, was a Proud Boys chapter leader. Biggs, of Ormond Beach, Florida, was a self-described Proud Boys organizer. Rehl was president of the Proud Boys chapter in Philadelphia. Pezzola was a Proud Boys member from Rochester, New York.