An extraordinary thing happened in a Washington, D.C., courtroom on March 9, 2023. For a minute there last Thursday, it looked as if there might be some justice — an actual defense allowed to be put forward for Jason Nordean, of Washington State, who was affiliated with Proud Boys. By Monday, however, any hope that the jury in the Jan. 6, 2021, case might hear about the FBI destroying evidence, omitting the name of an agent from an email thread, and spying on Nordean’s discussions with his lawyer flickered and died.
Defense attorneys often say that their client is the U.S. Constitution. But in the D.C. courts, the Constitution is losing. A lot.
Related: What We Weren’t Shown About Jan. 6
We’ve grown familiar with stories of one-sided justice from the D.C. courts in January 6 cases. The one-sided justice follows the one-sided news coverage and the one-sided narrative that has come from the Left, who whisper lies in the ears of their transcriptionists in the media.
We’ve seen jurors with political axes to grind. The book is thrown at trespassers to induce ridiculous plea bargains, people have been kept in solitary confinement in the D.C. jail for months and now years, one “defense” attorney required her client charged with trespassing to read woke books to re-educate her, and, of course, there’s exculpatory evidence withheld from defendants, as seen on Tucker Carlson Tonight on Fox News. It’s been an abject nightmare for justice.
And now this.
On Monday, Judge Timothy Kelly denied Nordean’s attorney, Nick Smith, the ability to cross-examine an FBI Special Agent about a spreadsheet containing communications between the agents. Some of the messages spoke about deleting information, deleting the name of a potential witness, and Nordean and his attorney discussing his defense with FBI Special Agent Nicole Miller.
NTD reported that the messages on the spreadsheet certainly looked suspiciously as if the FBI destroyed evidence.
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.
The defense, naturally, planned to move for a mistrial, or at the very least a Special Master to go over the material, but the judge held all issues in abeyance until the two sides briefed him.
In the defense brief, Smith wrote:
An agent involved in the investigation states to Miller, “this one email def indicates that [Defendant Rehl and his attorney] want to go to trial.” The agent says that one of the lead prosecutors on this matter should not be alerted, “yet.” The government’s suggestion that a defendant’s conversation with his lawyer about whether to go to trial is not “trial strategy” is risible. By definition, it is the most fundamental trial-related question.
Much of the government’s brief is premised on the notion that the constitutionality (and ethical propriety) of this agent exchange turns on finer points of attorney-client privilege and waiver. ECF No. 687, pp. 14-18. That is wrong. The government suggests the Fifth and Sixth Amendment analysis exclusively turns on a reading of Weatherford v. Bursey, 429 U.S. 545, 558, 51 L. Ed. 2d 30, 97 S. Ct. 837 (1977). That is also wrong.
But Judge Kelly ruled that prosecutors were right when they argued that both Nordean and his attorney knew the prison communications devices could be accessed by law enforcement — even if they were between attorney and client. So much for privilege.
Judge Kelly “denied all but one of the defendant’s arguments about the leaked messages,” and that leaves a narrowed space for the defendants to maneuver should they wish to upend the trial based on these messages alone,” NTD reported. And that one issue was allowing the defense to ask Special Agent Miller about deleting the identity of the agent who ran one of the Confidential Human Sources (CHS) involved in spying on the Proud Boys.
Over on the Left, in a series of tweets, the Lawfare crowd and their flying monkeys were concerned that their buddies at the prosecutor’s office wouldn’t have a good explanation for the trampling of Nordean’s rights.
You remember that the issue exploded Wed afternoon when atty Nick Smith (for def Ethan Nordean) revealed that an FBI spreadsheet turned over to the defense, when manipulated in a certain way, sprang open to reveal >1000 extra lines of internal FBI messages. …
Tho some of those messages looked exceedingly suspicious, a govt filing yesterday appeared to defuse many of the issues. I discussed the highlights here. https://t.co/ePHLEVLRyS
/3— Roger Parloff (@rparloff) March 13, 2023
Tho some of those messages looked exceedingly suspicious, a govt filing yesterday appeared to defuse many of the issues.
But after a moment or two of concern that “some of those messages looked exceedingly suspicious,” the Lawfare crowd was palliated by the assurances from the DOJ and FBI that they would never do something like lie to a court. And the conclusion that the glaring messages were “much ado about nothing.”
Nordean and three other members of Proud Boys are charged with obstruction of a judicial proceeding, destruction of government property, disorderly conduct, and trespassing into a restricted area.
It’s unclear at this point why any judge, especially this Trump-appointed judge, would take the word of the FBI and DOJ, which have lied to the FISA court, framed President Trump as a Russian secret agent, and tried to rig at least two presidential elections.
And that’s only a partial list of Main Justice’s treachery. Perhaps readers can list the rest in the comments section.
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