WASHINGTON — An inadvertent “spill” of thousands of potentially classified messages between FBI agents upended the ongoing seditious conspiracy trial of five Proud Boys on Thursday as the Justice Department asked for time to conduct a review of the newly discovered materials on national security grounds.
The messages were discovered by defense counsel while preparing for their cross-examination of FBI Special Agent Nicole Miller. Miller has been a key witness for the prosecution, which questioned her about the five Proud Boys’ alleged use of “tools” – other members of the group and non-members they referred to as “normies” – to incite some of the first assaults on police lines on Jan. 6. Miller spent two days on the stand this week describing videos showing Proud Boys marching to the Capitol, pushing through police lines and, in the case of defendant Dominic Pezzola, using a police riot shield to bash in the window that created the first breach of the U.S. Capitol Building.
As preparation for her testimony, Miller provided a spreadsheet of messages she’d sent through an internal FBI communications tool called Lync between Jan. 6, 2021, and Nov. 11, 2022 – the day before the trial was initially set to begin. The spreadsheet was sent to defense attorneys in November, but it wasn’t until the last week when attorney Nicholas Smith, representing Washington state Proud Boy leader Ethan Nordean, said he’d discovered thousands of hidden rows in the document. Those rows contained messages from other FBI agents to Miller and, in at least one case, an apparent reference to an agent accessing potentially privileged attorney-client communications involving another defendant, Zachary Rehl.
On Wednesday, Smith attempted to bring the hidden rows into evidence during cross-examination of Miller in an effort to impeach her testimony. Successfully impeaching a witness can result in a judge ordering all of his or her testimony stricken from the court record – meaning jurors would be instructed to ignore it when deciding upon their verdict. Smith’s questioning prompted an objection from the Justice Department that it was outside the scope of Miller’s initial direct examination and ultimately caused the trial to be paused for the remainder of the day.
By Thursday morning, prosecutors said the issue had become more complicated. During their review of the spreadsheet overnight they determined some or all of the thousands of newly discovered messages might not have gone through a classification review. And at least one, according to Assistant U.S. Attorney Jocelyn Ballantine, appeared to relate to a “classified equity.”
“The FBI needs to conduct – consistent with its national security obligations – needs to conduct that [classification] review,” Ballantine, who oversees the Jan. 6 conspiracy cases for the DOJ, told U.S. District Judge Timothy Kelly.
Defense attorneys meanwhile seized upon the messages as evidence the DOJ might have intentionally withheld potentially exculpatory evidence or even as grounds for a mistrial. Carmen Hernandez, who represents Rehl, said the message from an FBI agent referring to communications between her client and his former attorney could be a grave 6th Amendment violation. Norm Pattis, representing Proud Boy and former Infowars employee Joe Biggs, said the disclosure was an error of the government’s creation and adamantly refused to return any materials to prosecutors without a direct order from Kelly.
“Absent an order of the court, I will not return it and I will in face use it,” Pattis said.
Pattis, acknowledging Miller’s importance as a witness for the prosecution, demanded defense attorney’s be given the opportunity to directly question her about whether she intentionally withheld messages before the jury.
“Anything that enhances her credibility prejudices the defense,” Pattis said. “We’re prepared to attack it, and we’re prepared to attack it by any fair means.”
Miller herself was called briefly to the stand Wednesday to describe the classification review she’d performed on the spreadsheet. She said she’d obtained it from FBI headquarters and had filtered out messages sent to her before she’d determined whether anything she had sent was classified. She described many of the hidden messages as internal conversations regarding “administrative things such as case files.” Hernandez, who said she was worried about over-classification issues, said her own review of the messages had found many of them were “mundane” things like going to lunch.
After hearing from Miller, Kelly ordered the trial put on hold until Monday to allow a DOJ team to conduct its classification review. He also ordered the defense not to further review the document itself or send it to anyone else until further notice from him.
Kelly finished by saying he’d received an email from Assistant U.S. Attorney Erik Kenerson that had taken the potential violation of Rehl’s 6th Amendment rights from a “five-alarm fire to a one-alarm fire,” although he did not elaborate on the email nor was it entered into the public record. Rehl’s attorney did not immediately respond to a request for comment about the issue.
The Proud Boys trial was set to resume on Monday with further cross-examination of Miller and the final two witnesses expected in the government’s case-in-chief. Once prosecutors rest, defense attorneys will begin presenting their case to the jury. It remained unclear Thursday whether any of the defendants would take the stand to testify in their own defense.
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