Proud Boys call for emergency hearing after defense witness ID'd as government cooperator

WASHINGTON — Five Proud Boys accused of inciting the attack on the U.S. Capitol Building asked a judge to put an immediate halt to their trial after learning Wednesday a witness they were preparing to call had been cooperating with government investigators for nearly two years.

In a motion filed Wednesday afternoon, defense attorney Carmen Hernandez, representing Philadelphia Proud Boy Zachary Rehl, said prosecutors had informed the defense after court adjourned for the day of the witness’ status as a confidential human source, or CHS. According to Hernandez’s motion, the witness, who was not identified, had been cooperating with the government since April 2021 through at least January. 

“During this period of time, the CHS has been 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,” the motion says. “During the period of time, the CHS also participated in prayer meetings with members of one or more of the defendants’ families. The CHS also engaged in discussions with one of the defendant’s family members about replacing one of the defense counsel.”

Hernandez’s motion asks U.S. District Judge Timothy Kelly, who is presiding over the trial, to compel the government to turn over any documents it has concerning “recordings or reports” involving the defense team – suggesting defense attorneys are concerned the CHS may have passed along information about their defense strategies to the government. As of Wednesday afternoon, the Justice Department had not yet responded to Hernandez’s motion.

The issue of government cooperators has prompted some of the lengthiest and most ardent fights so far in the trial, which began its 11th week on Monday. Defense attorneys have argued they’ve been hamstrung by the government’s resistance to turning over information about cooperators and their handlers. The trial also had to be temporarily paused earlier this month when thousands of hidden rows were discovered in a spreadsheet prepared by an FBI witness – at least one of which, prosecutors said, potentially pertained to a “confidential asset.”

The DOJ, for its part, has said it's made a number of confidential human sources involved in the investigation available for the defense to call as witnesses if they choose to do so. Kelly gave prosecutors until 9 a.m. Thursday to respond to the defense's latest motion.

In her filing Wednesday, Hernandez said the latest reported disclosure by the government was reason to doubt the “veracity of the government’s explanation and justification for withholding information about the CHSes who have been involved in the case.” She asked for an immediate emergency hearing and an adjournment of the trial until the issue is resolved.

Defense attorneys began presenting their cases-in-chief Monday. Attorney Nicholas Smith, representing Washington state Proud Boy Ethan Nordean, called three members of the group to testify they weren’t aware of any plan to try to stop the certification of the 2020 election. One, Michael Emanuel – a former lead singer of the punk band the Misfits who performs under the name Michale Graves – testified he knew for a fact there was no “elaborate plan to take the Capitol.” As of Wednesday, it remained unclear whether any defendants would take the stand in their own defense, although attorneys for several indicated in court their interest in doing so.

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