A ‘Spill’ of FBI Secrets

The FBI agent squirmed on the hot seat.

Confronted with messages the Justice Department attempted to conceal, Nicole Miller, one of the lead FBI investigators assigned to the Proud Boys case, was on the verge of admitting that the FBI monitored privileged communications between one defendant and his attorney in 2021.

“It appears so,” Miller responded when asked by defense attorney Nicholas Smith on March 8 to confirm she and another agent discussed the content of emails exchanged between Zachary Rehl, one of five Proud Boys currently on trial for seditious conspiracy, and his former lawyer.

Smith read aloud one of Miller’s texts: “I need to find other emails, but this one email definitely indicates that they want to go to trial, But don’t freak out, Jason and Luke.” 

Smith turned to Miller. “Now, ‘Jason,’ you understand to be referring to the prosecutor in this case, Jason McCullough. Correct?”

But jurors never heard an answer. After prosecutors loudly objected, Judge Timothy Kelly abruptly dismissed the jury. He informed jurors that he wanted “to press pause, as we sometimes do when an objection hits,” and reconvene the morning of March 9.

But that didn’t happen either.

Instead, Kelly, outside the eyes and ears of the jury, held a hearing with both sides on March 9 to determine how to proceed after the defense team uncovered messages indicating FBI agents doctored internal reports, destroyed evidence, and tipped off prosecutors about defense strategy on the government’s highest-profile January 6 case.

Prior to her testimony, Miller had compiled a spreadsheet of so-called “Jencks” material that cataloged internal messages related to her work on the case. The spreadsheet contained 25 rows of messages—but roughly 12,000 rows were hidden behind a tab and found by the defense.

One message referenced editing a report on a confidential human source, commonly known as an informant: “You need to go into that report you just put and edit out that I was present,” one agent texted Miller. She complied.

Another agent told Miller an FBI supervisor instructed the unidentified agent to destroy “338 items of evidence.” To which Miller reacted, “OMG INSANE.”

In perhaps the most shocking revelations, Miller and another agent discussed emails between Rehl, who has been imprisoned under pretrial detention orders since March 2021, and his then-attorney, Jonathan Moseley. “Found an email thread with Rehl and his attorney, Moseley. The attorney raised some interesting points.”

“Hopefully all related to him pleading out,” Miller replied.

Another defense attorney later noted that “there appear to be missing FBI messages” in the same exchange.

Rather than express outrage at the fact that the FBI was spying on what is commonly considered privileged communications protected by the Constitution, Kelly instead gave prosecutors time to concoct a face-saving strategy—and that they did.

“It appears that the Jencks production to defense counsel may involve a spill of classified information,” assistant U.S. Attorney Joyelyn Ballatine told Judge Kelly. She added that the government needed to “claw back” the entire spreadsheet to review all the messages for allegedly “classified” material.

“[We] would ask them to return to us and confirm that they have deleted all copies of that spreadsheet from any electronic device or any hard drive that they have and then we would reproduce it to them,” Ballatine said. She further claimed that one agent in communications with Miller “works on a squad that does covert activity that is classified.”  

Ballantine claimed the 338 items of destroyed evidence might “impact a classified equity,” Whatever that means.

Naturally, defense attorneys immediately objected to the government’s demand that incriminating materials be returned to the original source and, without any oversight or accountability, unilaterally decide which messages were classified and which were not. 

“Everything has been a secret order where we can’t share any information,” Sabino Jauregui, the lawyer representing Enrique Tarrio, complained to Kelly. “Everything has been done under cover. And now, they come in here; they use this word ‘classified’ to try and delay the case. I think we should continue. I think Mr. Smith’s ‘gotcha’ moment yesterday was ruined, and he had every right to get that agent and destroy her on cross and, all of a sudden, the trial was stopped.”

Kelly, a longtime Justice Department employee who worked for years at the U.S. attorney’s D.C. office—the same office prosecuting every January 6 case—was unpersuaded by the defense argument and the totality of the evidence before him. “I think it makes sense for me to order the defense to do what the government’s asked,” Kelly concluded. The spreadsheet, which Ballantine later in the hearing described as a “classified document,” could not be reviewed, copied, or shared until further notice.

A flurry of motions followed. Defense attorneys filed motions to dismiss the case based on Sixth Amendment violations. The Justice Department informed the court on March 12 that 80 rows in the original spreadsheet had been removed after prosecutors determined the messages were “either classified or sensitive.” And the reference to a doctored FBI report? The government claimed the agent requesting the edit simply wanted to be removed from an email chain because he had been promoted and was no longer handling the informant. “The exchange concerns a routine clerical matter and does not suggest any wrongdoing on the part of the FBI generally or of Agent Miller personally,” prosecutors wrote.


Oh, and the 338 items of destroyed evidence? Prosecutors insisted, without providing a scintilla of proof, that message referred to the routine “disposal” of evidence in a 20-year old case that had been closed. Always indignant, the Justice Department condemned the “potential for confusion and unfair prejudice here is obvious, given the inflammatory use defense counsel have already made of the ‘destroy evidence’ remark.”

But the government’s explanation as to why FBI agents were spying on email correspondence between a defendant and his attorney then apparently sharing that intelligence with prosecutors handling the case should alarm all Americans. 

According to the Justice Department, individuals incarcerated at federal prisons—including defendants not convicted of any crime, as is the case with the Proud Boys, including Rehl, now on trial—are not entitled to protected communications with their lawyers. All emails and phone calls, the government explained, are conducted on a computer system operated by the Justice Department. Those in custody must agree to terms of use, including an acknowledgement that attorney-client discussions would be monitored. “Rehl waived any privilege by knowingly using [the Federal Detention Center]-Philadelphia’s monitored email system to communicate with his attorney.”

Prosecutors demanded that cross-examination of Agent Miller, which Kelly interrupted right before the line of questioning got juicy, be limited to “video, photographic, and message evidence from January 6, 2021, from midnight to shortly before 5:00 p.m.” Translation: Anything Miller discussed after January 6 should be off the table.

As expected, Kelly folded to nearly every government demand. He accepted at face value the explanation that the destroyed evidence pertained to an old criminal case and was not relevant to the Proud Boys’ trial. He also refused to take up arguments about violations of the defendants’ Sixth Amendment rights, declaring those discussions were not within the jury’s purview. And Kelly strictly limited cross examination about the edited report on the informant. If the government’s version of what happened related to the report is true, Kelly sniffed, the defense objections are “much ado about nothing.”

What Kelly must not realize is that the public does not view the dirty secrets accidentally “spilled” by an untrustworthy FBI and Justice Department as “nothing.” Kelly, and the Justice Department, can wave off due process rights, transparency, and the basic tenets of a fair trial. But as the American people come to terms with the phony narrative of January 6, they ultimately will hold shameless judges like Kelly and rogue federal officials, like Ballantine and Miller, responsible for the accelerating degradation of the U.S. justice system.

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