Just when we thought the persecution of January 6 defendants by the U.S. Department of Justice (DOJ) couldn’t get any worse — it did.
Exactly one day before she was to testify as a defense witness for defendant Zachary Rehl, DOJ lawyers disclosed to Rehl’s attorneys that their defense witness was actually an FBI informant. The New York Times identified that informant as Jen Loh, a Texas-based activist who once ran “Latinos for Trump.” (Extending the deception further, Loh apparently is not this informant’s real name.)
Loh had been an FBI informant since April 2021, well before Rehl’s trial even began. The worst aspect of the story is not just that Loh had agreed to be a defense witness. Loh had embedded herself into the defense team. She had spent the past year “talking with the members of the [Proud Boys] group and their defense counsel about the case and suggesting possible witnesses and attorneys who could help. All the while, [she] was also a paid FBI informant.”
The DOJ had known since at least December that Rehl’s defense team trusted Loh so much it
included her in meetings with the lawyers formulating defense strategy. Compounding that breach of law and ethics, DOJ lawyers failed to reveal the information to defense attorneys for another three months.
And Loh did not confine her dirty work to the Rehl case. Loh was “involved with multiple defendants in the case [and] their lawyers as well.” The DOJ spy went so far as to attend prayer meetings with the political prisoners’ families. Imagine the kind of person who would do that?
DOJ lawyers deny they ever asked her to spy, but at this point it certainly looks like Loh’s contacts with the defendants and their attorneys compromised their constitutional rights — including attorney-client confidentiality and the Sixth Amendment right to counsel.
Access to Privileged Emails
Apparently the DOJ had many ways of spying on the January 6 defendants. Nicole Miller, a lead FBI investigator assigned to Rehl’s case, discussed with another investigator “the content of emails exchanged between Zachary Rehl … and his former lawyer.” Miller texted the other investigator: “I need to find other emails, but this one email definitely indicates that they want to go to trial.” In another thread, another agent messaged Miller, “Found an email thread with Rehl and his attorney….The attorney raised some interesting points.” Not explained is how the investigator gained access to confidential and privileged attorney-client communications. “Another agent told Miller an FBI supervisor instructed the unidentified agent to destroy ‘338 items of evidence.’ To which Miller reacted, ‘OMG INSANE.’”
Rehl’s defense lawyers have now asserted in court filings that they believe the government “doctored internal reports, destroyed evidence, and tipped off prosecutors about defense strategy on the government’s highest-profile January 6 case.”
The DOJ has bitterly fought defense efforts to admit evidence of the spying by agents of the FBI and DOJ on legally protected, confidential defense communications. Even when evidence has been submitted, it has been in the form of vast “document dumps” of mostly irrelevant information, with no specificity as to what information the government actually intends to use as evidence. Defense attorneys, often overworked and understaffed public defenders, have been forced to file multiple motions asking the court to require the government even to identify the information it intends to use as evidence.
District Court Judge
If there had been even a hint that a defense attorney sent a spy into a U.S. Attorney’s office to learn prosecution strategy, or had intercepted privileged emails, almost any federal district judge would have had the defense attorney taken out of the courtroom in chains. Is that what happened here? Not exactly.
Reporter Julie Kelly authored the book, January 6: How Democrats Used the Capitol Protest to Launch a War on Terror Against the Political Right. Ms. Kelly has covered this story extensively. She reported that the team led by DOJ attorney Matthew Graves not only misled, but “continues to mislead court and defendants about actual number of FBI informants.” But the judge in the case, District Judge Timothy Kelly, is a former prosecutor, who Julie Kelly reported “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….”
Defense attorneys have tried to fight back, despite the slanted playing field. “The principle is well established that surreptitious invasions by the government into meetings between attorneys and their clients or witnesses are forbidden, as is any attempt to stealthily uncover the defense’s trial strategy,” said Rehl defense attorney Carmen Hernandez.
Defense counsel Hernandez demanded that the DOJ immediately release the names of any more informants still on assignment within the defense team. She noted that the DOJ’s conduct raises “serious and substantiated allegations of governmental misconduct” involving “surreptitious invasion and interference of the defense team by the government.” She filed a motion to dismiss charges, arguing that the DOJ’s misconduct is “a clear and flagrant Sixth Amendment violation”that “screams for a dismissal.”
As this article is being finalized, Judge Kelly refused to allow the defense to raise Loh’s history as a FBI informant in court, so the defense decided not to call her as a witness. The final story about what the DOJ did or did not do here is still to be revealed, but at the moment it looks bad.
It is no longer fashionable to quote Scripture in court, but judges should read Ecclesiastes 8:11: “Because sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil.” If federal judges allow DOJ lawyers to abuse the justice system, the innocent will go to prison and we all will suffer the consequences as our “justice” system collapses before our eyes.