By Trevor Schakohl
Judge Timothy Kelly rejected Jan. 6 defendant Zachary Rehl’s request Tuesday to dismiss his case based on the FBI reading emails he exchanged from prison, less than two weeks after Rehl’s attorney learned that one of his co-defendant’s planned witnesses had been an FBI informant.
Rehl is on trial with former Proud Boys national chairman Enrique Tarrio and members Ethan Nordean, Joseph Biggs and Dominic Pezzola for allegedly conspiring to oppose the Jan. 2021 transfer of presidential power, along with related charges. Rehl claimed his Sixth Amendment rights were violated and motioned the court to dismiss his indictment because FBI agents reviewed messages with his former attorney Jonathan Moseley, sent through the Bureau of Prisons’ email system.
Kelly, however, disagreed.
The judge said the email system required that inmates consent to “monitoring and information retrieval for law enforcement and other purposes.” He added that the consent rule explicitly exempted such emails between inmates and their attorneys from attorney-client privilege, agreeing with the government’s argument that Rehl “knowingly waived any claim to privilege over these communications.”
Zachary Rehl Court Order by Daily Caller News Foundation on Scribd
The government revealed to the defense on March 22 that a woman Tarrio’s attorneys intended to call as a witness had been an official FBI confidential human source from April 2021 to January 2023. The woman, who The New York Times identified as Jen Loh, had communicated with one or more defense lawyers, participated in prayer meetings with one or more defendants’ families and talked with one of the defendant’s family members about replacing one of the defense counsel, Rehl’s lawyer Carmen Hernandez said in a March 22 motion.
Kelly ruled March 27 that defense lawyers could not raise the issue of Loh’s FBI relationship in the trial, and Tarrio’s attorney Sabino Jauregui subsequently said he would not to call her to testify, according to Lawfare’s Robert Parloff. On March 23, Jauregui had told Kelly he asked DOJ attorneys whether the next two witnesses he planned to call were FBI informants, according to a transcript provided by American Greatness’ Julie Kelly.
“You know what they told me?” Jauregui said. “Nothing. They don’t know.”
Nordean’s attorney Nicholas Smith claimed March 23 that Loh had started asking him detailed questions about matters like evidence in the case around April 2022. FBI San Antonio Special Agent Kristina Spindel swore in a statement the FBI did not task Loh with collecting information about the defendants in the case and never received any information about contact she had with them or their lawyers on the matter.
“My biggest concern is the fact that we still have confidential human sources who are unknown to us,” Hernandez said March 23.
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