Defendants in the ongoing Jan. 6, 2021, Capitol Breach trial suffered a defeat on Monday, as the court ordered that the defendants may not cross-examine an FBI agent for most of the defense attorneys’ allegations that spawned from internal FBI messages inadvertently leaked in court.
Judge Timothy Kelly, a Trump-appointed judge, on Monday addressed allegations made by attorneys of the Jan. 6 defendants that targeted leaked internal FBI messages, which were revealed in court when Nick Smith, a defense attorney representing Ethan Nordean, cross-examined FBI Special Agent Nicole Miller on Thursday last week.
The judge denied all but one of the defendant’s arguments about the leaked messages. That leaves a narrowed space for the defendants to maneuver should they wish to upend the trial based on these messages alone.
Leaked Messages in the Crosshair
The leaked messages emerged when Smith showed in court hidden rows in an Excel spreadsheet provided to him by the DOJ, which contained thousands of lines of correspondence among FBI agents—mostly addressed to Agent Miller—in the agency’s Lync system. The files were “hidden” via a “filter” function in Excel, according to a Thursday filing by Nordean.
These messages include a directive from FBI personnel to Miller to “destroy” 338 pieces of evidence and another directive to Miller to “edit out” an FBI agent from a Confidential Human Source (CHS) informant report, the filing read.
Since last Thursday, these internal messages were the focus of defense attorneys, who alleged that the messages showed that the DOJ altered evidence, violated due process, and intruded on the defendants’ rights to counsel by monitoring the defendants’ communications with their counsel.
Based on these allegations, the defendants’ attorneys made a range of requests to the court, including the appointment of a special counsel to review the messages, further cross-examination of Agent Miller about these messages, and dismissal of the case altogether.
Cross-examination refers to the defense lawyer’s questioning of the plaintiff’s witness—Agent Miller, in this case—and comes after the plaintiff questions the witness in direct examinations. The scope of cross-examinations usually limits to that touched by the line of questioning by the plaintiff in direct examinations for the purpose of checking the witness’s testimony, knowledge, or credibility.
The defense attorneys, in this case, requested to further cross-examine Agent Miller on the leaked FBI communications, which is extraneous information to the plaintiff’s original line of questioning. The DOJ sought to stop all further questioning about these leaked messages and push defense attorneys back to the DOJ’s original line of questioning in direct examination, according to its court filings over the weekend.
The judge rejected all but one of the defendants’ allegations since the revealing of the FBI messages last Thursday.
‘Editing’ of Informant Reports
The judge allowed only one request from the defendants, which was a request from Nordean’s attorney to cross-examine Agent Miller regarding the “editing” of an FBI personnel out of a CHS informant report.
In a Sunday filing, the DOJ said the editing request in the disputed message was sent by another FBI personnel who is trying to remove his name from correspondence with a confidential source he was no longer handling. The DOJ maintained that the FBI personnel instructed Miller to edit out the agent’s name in pursuant to FBI policy and characterized the message as a “routine clerical matter” unrelated to the Proud Boys.
In response, the defense said the DOJ’s words could not be assumed true and required further investigation.
“Nordean does not deny that those facts could be true. However, the government’s summary presentation of facts in a brief—accompanied by no sworn declaration and without even an identified source for the information—cannot eliminate Nordean’s rule-based right to cross-examine the witness about an exchange that, on its face, does not appear benign,” Nordean’s attorney wrote in a filing on Sunday, adding that the defense should be able to cross-examine Agent Miller for this reason.
In an order issued at the beginning of the trial, Kelly agreed with Nordean that cross-examination of Agent Miller on the message containing the CHS report would be appropriate and found the messages, at least at face value, that show it is plausible that the agent may have provided a CHS report that was inaccurate or incomplete.
Nordean’s attorney cross-examined Miller on the CHS report. As of Monday, the judge has not found that the witness contradicted her own testimony on record.
Monitoring of Attorney-Client Communications
Another allegation, one that spurred heated exchanges in court, which Kelly ruled void, was the defendants’ claim that the DOJ monitored attorney-client communications and crafted a trial strategy around the said communications.
“An agent involved in the investigation states to Miller, ‘this one email [definitely] indicates that [Defendant Rehl and his attorney] want to go to trial,’” wrote Nordean in a filing on Sunday, citing an FBI email message. “The agent says that one of the lead prosecutors on this matter should not be alerted, ‘yet.’”
Attorneys acting for Jan. 6 defendants Dominic Pezzola and Nordean said in court filings over the weekend that the messages violate the defendants’ right to counsel, as the FBI allegedly monitored communications between a co-defendant, Zachary Rehl, and his attorney. The message thus violated the Sixth Amendment, the defense stated, which prohibits invasion of the right to counsel (Matter of Fusco v. Moses).
But the DOJ said that because Rehl and his attorney communicated over a monitored prison system, they had waived the right to attorney-client privileges.
“The government has not obtained any privileged communications between defendant Rehl and Moseley,” the government wrote in response to Roots’s contentions in a filing on Sunday. “Rehl and Moseley made a fully informed choice to communicate with one another over a monitored jail email system. In doing so, they waived any privilege.”
Kelly, during trial on Monday, ruled in favor of the government and affirmed its stance that because the messages were made in a prison communications system, the defense’s claim that the FBI’s monitoring constitutes a Sixth Amendment violation is void. Therefore, Kelly said, the defendants may not cross-examine Agent Miller on this point.
Destruction of Evidence
Furthermore, Kelly ruled on Monday that the defendants may not cross-examine Miller on a leaked message that appeared to direct Agent Miller to “destroy” 338 pieces of evidence.
Kelly affirmed the government’s stance that the defense had not shown sufficient evidence to connect the said evidence to the case.
“There’s nothing in the record to suggest the agent was involved with this case or the destruction was related to evidence in this case,” Kelly said in court on Monday when talking about the message.
Furthermore, the judge said that because the defendants have not provided any substantial backing as to connect the messages to the case, the messages’ probative (evidentiary) value would be marginal and largely outweighed by risks of unfair prejudice, confusion of issues, and misleading the jury.
On the grounds above, Kelly ruled that the defendants would not have an opportunity to cross-examine Agent Miller on the messages that the defense said showed the destruction of evidence.
Defense lawyers attempted to object to the judge’s order in court, but their objections were overruled.
What Remains: Deleted Messages
As Judge Kelly struck down most of the defense’s proposed actions on the FBI’s leaked messages, the only point unresolved was related to roughly 80 lines of messages that the DOJ removed from the Excel sheet after Smith revealed the hidden rows in court.
When Smith first revealed the hidden rows on Thursday, Kelly paused the jury trial and sent the jury home to allow the DOJ to determine if any classified material is contained in the hidden rows in the Excel Sheet. The defense was not allowed to further review Miller’s Lync messages, according to Smith’s Sunday filing.
On Friday, the DOJ returned the Excel sheet to the defense, with 80 lines of information removed that it deemed “classified” and other materials that it deemed “not subject to production under the Jencks Act,” Smith’s filing reads.
Defense attorneys took issue with this removal, arguing that the deleted messages may be of value to the case. However, the judge sustained the government’s removal of these lines.
During Monday’s trial arguments, the judge said he would likely review the 80 lines of messages later in the week to see if they constitute “Jencks” material or any inculpatory material that the government uses in prosecution and that is relied upon by the government’s witnesses.
“The first question is: Are they Jencks material?” Kelly said in the trial, referring to the deleted messages. If the deleted messages constitute Jencks material, the government’s withholding of that material would open up possibilities for the defendant to request the judge to declare a mistrial or strike out Agent Miller’s testimony according to 18 U.S.C.S. section 3500(d).
Further, defense attorneys disputed the government’s definition of classified material on Monday, stating that the government should not be able to arbitrarily decide what is included in the trial based on classification standards that have not been provided on the record.
“When I get those 80 lines of messages, it should be clear what the government contends as classified and non-classified,” the judge said Monday in response to the defense’s contention.
Another corrupt court decision