It’s the latest wrench in a trial that has stretched into its fourth month, the most significant to emerge from the Jan. 6, 2021, attack on the Capitol. Prosecutors have charged Tarrio, Rehl and three others — Ethan Nordean, Joe Biggs and Dominic Pezzola — with igniting the attack, methodically working to breach multiple police lines and ultimately entering the building itself to prevent Congress from certifying Joe Biden’s election as president.
Prosecutors pushed back Thursday, contending that any suggestion of impropriety was baseless and that the informant was never tasked with gathering information about the Proud Boys defendants or their lawyers. They produced additional documents to the defense teams outlining the informant’s work for the FBI and emphasized that her relationship with the bureau was terminated soon after she was subpoenaed by Tarrio’s lawyers to appear as a witness.
The Justice Department supplemented its response with an affidavit from an FBI agent based in San Antonio, who described the informant as someone who had been on the bureau’s radar since 2019 after she came forward due to “her status as a victim.” The agent indicated that the informant helped the bureau with Jan. 6-related matters and had provided information about two of the Proud Boys defendants to the bureau in 2019 — before she officially signed up as a paid informant.
In a hearing before U.S. District Court Judge Tim Kelly, government attorneys agreed that the suggestions made by defense lawyers were serious and that they would attempt to provide additional information to allay their concerns. But they said prosecutors had no knowledge of the informant’s contacts with defendants and their counsel.
“This is all news to the government,” said Denise Cheung, acting deputy chief of DOJ’s criminal division.
But attorneys for Biggs and Pezzola said the damage could be too great to continue the trial. Norm Pattis, one of Biggs’ attorneys, described “20 to 30″ contacts between Biggs and the informant, including discussions of his legal representation and finances.
“I don’t want the trial to proceed,” Pattis said.
An attorney for Pezzola, Roger Roots, said the informant had similarly helped shape his client’s witness list. And Nicholas Smith, attorney for Nordean, said the informant had reached out to him “unsolicited” with questions and suggestions for defense strategy.
Kelly emphasized that the key question he’s considering is whether the prosecutors leading the trial learned anything they shouldn’t have known as a result of the informant’s contacts with the defendants or their lawyers. He said he didn’t see an immediate reason to pause the trial but that he would consider the matter further on Friday.
Defense attorneys have repeatedly raised questions about the presence of informants within the Proud Boys and how they might have been deployed by the FBI to track the group ahead of Jan. 6. Jurors in the trial have been shown evidence that there were some informants — also called confidential human sources, or CHSs — within the group, both in text message chains and on the ground on Jan. 6.
The use of such sources is commonplace for the FBI, but there are risks when they remain involved in potential criminal activity alongside targets of an investigation.
In the three-page filing, Hernandez expressed frustration that the Justice Department had not shared more details with the defense team about the informants used in the investigation.
The information about the newly disclosed confidential source, she noted, came a day before one of the defendants was prepared to call this witness to the stand.
Prosecutors have bristled at claims of impropriety, noting that they have made nearly 10 confidential sources available to testify as part of the defense case who could discuss their contacts with the bureau. But the Justice Department is resisting efforts by the Proud Boys defense team to demand testimony from FBI agents who handled those informants and were in touch with them in the days and weeks leading to Jan. 6.
