The government claims it would be "extremely prejudicial" to let McKay's attorney tell jurors that the informant had once advocated using arson to fight developers who were forcing low-income residents from their neighborhoods, according to a motion filed this week.
The government also wants to ask prospective jurors if they have any concerns about the use of informants.
McKay's retrial is scheduled to start March 16.
Chief U.S. District Judge Michael Davis, who will preside over the retrial, declared a mistrial last month after a jury deadlocked on whether McKay, 23, of Austin, Texas, was guilty of making and possessing eight Molotov cocktails during last year's Republican National Convention in St. Paul.
Defense attorney Jeffrey DeGree acknowledged that McKay and his former co-defendant, Bradley Neal Crowder, built the bombs, but his defense was that a government informant entrapped the men. McKay testified that he would never have built the devices had the informant not urged him to.
Crowder, also 23, pleaded guilty to a felony count in a plea bargain and is awaiting sentencing. When he entered his guilty plea, he told Davis that he and McKay were the only ones responsible for the Molotov cocktails and that nobody influenced them to build them.
Neither side called Crowder as a witness at McKay's trial.
The government's informant was Brandon Darby, another Texan and a longtime activist and community organizer. Darby is perhaps best known for his relief work in New Orleans following Hurricane Katrina. But he testified that he became a reluctant FBI informant after he became disenchanted with some members of the radical and anarchist community.
Later, he said, federal agents asked him to infiltrate a group in Austin that McKay and Crowder belonged to. The group planned to attend the GOP convention, allegedly to cause disruptions.
Darby was the government's key witness and he was also the man the defense tried hardest to discredit. He denied entrapping or influencing McKay to make the Molotov cocktails.
During cross-examination, DeGree made much of the fact that Darby had once advocated using arson against middle- and upper-class buyers who restore run-down neighborhoods by displacing low-income residents, a practice known as gentrification.
Darby acknowledged that in the past he had believed it was OK to resort to arson, although he said he didn't believe in it enough to ever do it himself.
In the new government motion, Assistant U.S. Attorney Jeffrey Paulsen asks Davis to prevent DeGree from referring to Darby's "alleged opinion regarding the appropriateness of using arson to combat gentrification."
"In the first trial, it was established that these views were expressed years before Darby ever met defendant David McKay," Paulsen wrote. "There was no showing that McKay had any awareness that Darby had ever expressed such views. Accordingly, any such references should be prohibited in the retrial."
Paulsen also wants to stop DeGree from referring to Darby's "alleged possession of a fully automatic firearm." Darby told jurors that when he went to New Orleans in the aftermath of Katrina, he took some of his guns, including a semiautomatic AK-47.
He said the only modification he made to the weapon was to replace the wood handgrip with a plastic one. He denied defense claims that the weapon was fully automatic, meaning it would fire several rounds with a single squeeze of the trigger.
"Such references were made by defense counsel repeatedly in the first trial, but no evidence ever was produced in support of these references," Paulsen wrote. "As such, it appears that there is no good-faith basis for defense counsel to make such prejudicial references during the retrial."
The government also submitted a list of proposed questions to be asked of prospective jurors to determine bias. Before the first trial, prosecutors submitted 10 questions, but the list submitted for retrial has an additional question: "Do any of you have concerns about the use of informants in criminal investigations?"
The U.S. attorney's office declined to comment on the motions. DeGree did not immediately return a call for comment.
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