Following an armed FBI raid with SWAT vehicles that terrorized his neighborhood and pregnant wife, Zachary Rehl was arrested in March 2021 for his involvement in the events of January 6. A Philadelphia judge ordered Rehl, a member of the Proud Boys, to be released from custody pending trial.
But Joe Biden’s Justice Department immediately asked a D.C. federal judge to keep Rehl in jail indefinitely even though he was not accused of committing a violent crime. Claiming Rehl “abetted” the destruction of government property—“a federal crime of terrorism,” prosecutors wrote—the government argued that no condition of release could keep the community safe from Rehl, a former Marine with no criminal history.
Enter D.C. District Court Judge Timothy Kelly.
“The Court finds that the nature and circumstances of the offenses weigh in favor of detention,” Kelly wrote in his July 2021 order. “[Although] there is no evidence Rehl carried or used a weapon that day, or laid his hands on anyone in a violent manner, he said and did things that are highly troubling.”
After spending two years in jail not convicted of any crime, Rehl is currently on trial in Kelly’s courtroom along with four other Proud Boys charged with seditious conspiracy—an indictment filed a year after their initial charges. Kelly has kept all five defendants behind bars awaiting trial, repeatedly denying all subsequent motions for release while at the same time granting one delay after another.
Kelly, naturally, is invested in justifying his cruel decision to incarcerate innocent men (yes, the country’s jurisprudence still assumes the presumption of innocence) for two years. Which only partially explains why he is running roughshod over the rights of the defendants to make sure they are found guilty.
Appointed to the bench by President Trump in 2017, Kelly spent 10 years working for the Justice Department including the U.S. Attorney’s Office for the District of Columbia, which prosecutes every January 6 case. He won an award from the FBI’s Washington Field Office, the very same office investigating every January 6 case. This is the sort of professional incestuousness Trump supporters from flyover country confront in the nation’s capital.
What’s unfolding in Kelly’s courtroom is a mockery of justice—a politically motivated case heavily reliant on speech and activity that should be protected by the First Amendment rather than substituted for hard proof of any crime, let alone a plan to overthrow the government. For example, when FBI investigators raided Rehl’s home, they found no weapons or detailed plot to run Congress out of town on January 6 but instead recovered clothing and challenge coins produced by the Proud Boys.
Despite having no relevance to the merits of the case, Kelly allowed the government to enter the coins into evidence to show the “relationship” between the defendants.
Apparently nothing is too inconsequential, dubious, or political in nature to offend Kelly’s judicial sensibilities. Kelly has allowed prosecutors to play for the jury a clip of Trump’s comment during the September 2020 presidential debate instructing the Proud Boys to “stand back and stand by,” a throwaway line that had nothing to do with January 6. Prosecutors want the clip used in an overt attempt to portray the Proud Boys as “white supremacists,” a description offered by debate moderator Chris Wallace. (Six jurors are black.)
What the government wants, the government gets in Kelly’s courtroom.
Kelly also seems unconcerned with the origins of a document the Justice Department cites as evidence of the traitorous “conspiracy.” In criminal indictments, the government referred to a document sent to Enrique Tarrio, leader of the Proud Boys, which “set forth a plan to occupy a ‘few crucial’ buildings in Washington, D.C. on January 6.”
The inference is that Tarrio was the author of the plan, or at least, a willing recipient. Not only did Tarrio not write the document, investigators can’t confirm he read it or shared it with others. A former (current?) government intelligence asset is at least partially responsible for penning the document—something that raises lots of red flags considering the number of FBI informants embedded in the Proud Boys months before January 6.
Which is one aspect of the case Kelly seems to want to avoid, as does the Justice Department. One defense attorney suggested this week that as many as 15 informants worked the Proud Boys case, but almost all the information related to informants is under seal.
Kelly appears to be complying with a Justice Department’s request to “pre-clear any questions regarding FBI CHSs that counsel intends to ask of any government witness on direct or cross-examination so that the Court may impose appropriate limitations on such questioning.”
In other words, defense attorneys need Kelly’s approval before they question the prosecution’s witnesses about informants.
Preposterous.
On the flip side, Kelly wants the jury to see the defendants’ negative reactions to suspected government assets. Kelly ruled, over defense objections, that a text by Ethan Nordean saying, “I’d rather you suck giant cocks in front of me”—a reference to his thoughts about those who work as informants—could be shown to jurors. “It’s probative to show the strength of the antipathy,” toward informants, Kelly said.
But Kelly’s most egregious dereliction of duty is that he’s allowing this trial to take place in Washington, D.C., a city that voted for Joe Biden by a margin of 88 points in 2020. One year into the trials, the Justice Department has a near-perfect conviction rate.
Further, televised performances of the January 6 select committee, must-watch events in the nation’s capital, fixated on the Proud Boys. As jury selection was underway in December, the committee held its last televised hearing, earning air time on local and national news channels.
The committee’s final report devoted several pages to the alleged role of the Proud Boys, assigning guilt, with Congress’ imprimatur, to the very defendants preparing to go to trial—an unprecedented conflict of interest that undoubtedly further poisoned a tainted jury pool.
None of that bothers Kelly, despite his sworn duty to protect the rights of the defendants. He, like every other D.C. judge, denied change of venue motions by insisting the selection process would weed out hostile jurors.
Did it? Obviously not. Carmen Hernandez, Rehl’s public defender, appealed again to move the trial out of D.C. after the jury was selected. “I have been practicing in this District and in other federal Districts for a long time. I have never, never experienced the level of prejudice and ill will toward a set of defendants,” she told Kelly on January 10.
Even objective trial observers noted the deep bias of the jury. “Although all sitting jurors swore they could put aside anything they’d read or heard before and decide the case solely on the evidence and the law, 13 of the 16 had heard of the Proud Boys; at least five thought the group held ‘far-right,’ ‘extremist,’ or ‘radical’ views; and three of the latter associated the group with ‘white supremacism,’” Lawfare blogger Roger Parloff wrote this month. “Six jurors had participated in liberal-leaning protests or marches, while none mentioned conservative-leaning demonstrations. The protests included, in two cases, ‘women’s marches’; in two cases, ‘anti-gun’ marches; and, in four cases, protests related to Black Lives Matter or George Floyd’s murder.”
The jury, Parloff noted, “would not be my dream panel.”
No kidding.
Unfortunately, not only is the jury far from a dream, Judge Tim Kelly is the defendants worst nightmare. A contemptuous display against the rule of law and the Constitution.