Washington — Prosecutors in the trial of the Proud Boys conceded Thursday that a witness to be called by the defense had previously been paid by the FBI as a confidential informant against members of the far right group in the months before five of its members were to be tried for seditious conspiracy.
According to court documents filed late Wednesday by defendant Zachary Rehl, between April 2022 and January 2023, the unnamed female FBI informant was “in contact via telephone, text messaging and other electronic means, with one or more of the counsel for the defense and at least one defendant.”
Prosecutors say the FBI ended its relationship with the informant upon learning in January that she might be called as a defense witness, in order to ensure she did not provide information about the case to government and violate any defendant’s attorney-client privilege. Confidential human sources are a tool used by federal investigators to obtain information and their identities are usually protected.
Rehl and four members of the Proud Boys — including leader Enrique Tarrio — are currently on trial for attempting to use force to prevent the peaceful transfer of power from former President Donald Trump to President Joe Biden during the Jan. 6, 2021, Capitol riot. All of them have pleaded not guilty.
In court on Thursday, attorneys for Tarrio revealed they intended to call the anonymous witness, but they grew concerned after prosecutors told them she had previously acted as a confidential human source for federal investigators.
Court papers revealed the informant had allegedly attended prayer meetings with “one or more” of the defendants’ families.
“The government disclosed this information for the first time on the day before the witness was scheduled to appear,” Rehl’s attorney alleged in court documents.
Prosecutors said in court on Thursday they had only recently discovered that the informant would be called as a witness in Tarrio’s defense and informed the defense as soon as the law required. The Justice Department wrote in court filings that it “neither relied upon any evidence from nor referenced the [individual] in question” when preparing their case against Tarrio and his codefendants.
“The FBI never tasked the [informant] with gathering any information on the defendants or their defense counsel,” prosecutors wrote. “And although the FBI was generally aware that the [confidential human source (CHS)] 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, the FBI intentionally chose to never ask the CHS about her relationship with defendant Enrique Tarrio or any of the other defendants or counsel.”
“There has been no intrusion on the defense camp, and no such records or recordings exist.”
During Thursday’s proceedings before Judge Timothy Kelly, which were conducted outside the presence of the jury, defense attorneys called the revelations “stunning.” Some asked for a fact-finding hearing, and others argued the trial should be paused.
Kelly said he would not halt the trial and instead instructed the parties to raise any issues regarding the witness in real time. Tarrio’s lawyers say they still intend to call her to testify.
The judge said although he understood the defendants’ concerns, the record before him indicated that no defendants or attorneys had been implicated by the informant’s relationship with the FBI and that government’s legal team on the Proud Boys case had not been aware of the arrangement. Prosecutors have turned records over to the judge from the informant’s relationship with investigators.
The high-profile criminal trial is currently nearing the end of its second month. Prosecutors rested their case last week after calling dozens of witnesses, including former members of the far-right group who had agreed to cooperate.
Defense testimony is scheduled to resume on Friday.