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Notes -
Ray Epps, pro-Trump rioter smeared by conspiracy theories, gets probation for role in Capitol riot
https://www.politico.com/news/2024/01/09/ray-epps-probation-capitol-riot-00134551
There's been an ongoing debate about Ray Epps on this site: Could he really be a Fed if the government is still trying to prosecute him? And the results are in: After heckling demonstrators to invade the Capitol, Epps was charged with a misdemeanor, uniquely leniency for J6 protesters, and will received one year probation. He will not see the inside of a jail cell. His suit against Fox News for defamation will be allowed to proceed, with the promise of a seven or eight-figure payout.
Almost simultaneously, the DOJ has announced that they will begin prosecuting J6 protesters who did not enter the Capitol building but were present in the demonstration outside. These protesters are expected to be charged with something more than misdemeanors.
A quick review of other J6 protesters
Enrique Tarrio was convicted as a terrorist for his role in organizing the Proud Boys even though he was not present at the Capitol or protest on J6
Owen Shroyer was jailed for speaking at the demonstration outside the Capitol, which prosecutors argued violated the terms of his parole (which stemmed from an occasion where he disrupted one of the House's impeachment procedings against Trump)
Joe Biggs, who was present at J6, was given more than a decade in jail after his efforts in taking down a fence around the Capitol were deemed to constitute terrorism, which resulted in his sentence being enhanced.
Steve Baker, an journalist who was present at J6 in his capacity as journalist for the Blaze, has been arrested by federal prosecutors, who sre seeking a 4-year jail sentence.
Ray Epps, who was present at J6, and encouraged people to enter the Capitol Building, will receive no jail time, will still be able to vote and carry a gun, and will possibly win a defamation payout of several million dollars. The government and the media agree that Ray Epps is not a federal agent, and that the accusation that he was caused him significant harm which is far worse than anything he deserves.
I used to think the J6 "fedsurrection" narrative was cope by right-wingers who weren't ready spiritually to defend the J6 protesters. I considered that, if you really believed the election was stolen, then a protest follows logically, except that that would make many conservatives uncomfortable. But, at this point, for me, it's pretty hard to deny that the government was up to something too. I could imagine that the government just had agents embedded to watch and follow along, but Ray Epps clearly did more than that.
I remember arguments on this site that, while it looked like Epps could be a Fed, the fact that he was still being prosecuted implied that maybe it wasn't so. Given his uniquely generous outcome, which almost amounts to an award, I'd like to reopen the discussion.
I changed my mind on Epps during our last discussion. I'm not particularly invested in the question of whether some participants in Jan 6 were feds or not, and I was totally willing to believe Epps was. However, I think a careful examination of the relevant law makes it much less likely that his light punishment is indicative of him being treated with kid gloves.
The most notable things Epps did was loudly advocate for entering the capital. But it's difficult to actually make a case based on this. First amendment jurisprudence makes it really really hard to prove incitement, and conspiracy charges require agreement - and it's notable that he gets shouted down with accusations of being a fed when he starts yelling about going into the capitol. If he's a conspirator, who are his co-conspirators? There's a video of him whispering to another guy shortly before a barrier is breached but both Epps' and the other guy's accounts of what he said aren't incriminating.
In short, I got convinced by the fact that the charges that I thought he should be up for are just a really hard lift - as also evidenced by the fact that no one else, even Trump himself, has been charged for incitement of a riot (and as an aside, while the Colorado court found Trump to have incited Jan 6 by the standard of "clear and compelling evidence", an implication of that ruling is that he was not guilty "beyond a reasonable doubt"). And the feds hate losing cases, so they tend to drop charges that aren't rock solid.
Take out any way of charging him for things he said, and it's hard to nail him on anything other than weak "disorderly conduct" type charges. Someone who entered the Capitol later during the event and walked around a bit before leaving while damaging nothing feels morally much less culpable than Epps, but they actually have committed an action that is easier to prosecute more harshly. The law doesn't match our intuitions perfectly, some people get a raw deal and some get lucky. Such is life.
The main remaining thing that I find strange about the Epps case is that he went on repeatedly about entering the Capitol, but then didn't actually do so himself. A lot of people clearly shared his belief that they should enter the Capitol, and acted on it, but he didn't. Why? Change of heart? Just a coward? Could be, I guess. It's weird, but not so weird that him being some sort of plant is the only plausible explanation.
At the end of the day though, regardless of whether the motte of "some government officials were involved in Jan 6" is true or not, the bailey of "Jan 6 was orchestrated by the feds to make Trump and his supporters look bad" is obviously false. Maybe some Capitol police shared the goals of the rioters and deliberately let them in. Maybe some crook who was being used as an informant went and committed more crimes. But the driving force behind Jan 6 was obviously Trump and his supporters, and there is no clearer evidence of this than the fact that they continue to defend and justify Jan 6. If it was all a ploy to discredit Trump, why is he going around demanding Biden release the "J6 hostages"? Why is he promising to issue pardons? It can't simultaneously be true that it was a "fedsurrection" and that it was just a "peaceful and patriotic protest" whose participants are being unjustly prosecuted.
The "far-right anti-government militia" group (thanks wikipedia) that he was chapter president of? Prosecutors have had no trouble putting together conspiracy charges based on very little actual conspiring for other members of such groups.
I know that you think that the bar for conspiracy charges is high, and you are probably even right based on an honest reading of the law -- but that's not how the law is being used around J6, and I'm very confident that this case could have been made if someone were so inclined.
Clarification: Incitement is a high bar to reach. Conspiracy is actually a pretty low bar, and Epps is very lucky he doesn't reach it.
To convict you of a conspiracy, the prosecutor needs proof beyond a reasonable doubt of:
An agreement between you and at least one other person to commit a crime
At least one overt act in furtherance of the conspiracy (which does not itself need to be illegal).
In an alternate universe where Epps shouted "We need to go INTO the capitol!" and someone else shouted "Hell yeah!", that would be the agreement to commit a crime. Joining the rally marching toward the capitol would be an overt act in furtherance of the conspiracy (even if he didn't actually go in). In other words, Epps was playing with fire and did everything necessary to be guilty of conspiracy charges, but because the people around him called him a fed instead of agreeing, he dodges a bullet.
I wouldn't be shocked if Epps indeed conspired with members of his militia to commit some crime or other, but I haven't seen any evidence of that, and evidence is necessary for a conviction.
That's just it -- these 'militias' are riddled with for-sure feds, if they wanted to go after basically anyone involved for conspiracy there's plenty of evidence to be had -- given that Jan6 itself is being treated as a criminal act.
Have you read the Revolver articles on Epps? It's been a while, but as I recall while they are focussed on the idea that Epps is a fed, they've gathered enough publically available information to make a pretty good conspiracy case -- never mind all of the evidence that the actual feds have from all the other prosecutions.
I've read them, I don't see the evidence. In particular, I don't see evidence beyond a reasonable doubt that anyone made an agreement with him to commit a crime.
OK, I looked at it again -- check the part towards the end of Pt 1, in which Epps is on video conspiring with 'MaroonPB' and Ryan Samsel just before they push the barricades down and rush the Capitol.
He tells the 'MaroonPB' guy to 'leave your pepper spray here when we go in there, we don't want to get shot' -- the guy then leaves the pepper spray and goes in there. That alone seems like enough for current-day definitions of conspiracy -- but Revolver News is not the FBI; if the FBI were inclined to go over these dudes' phone records (as they did with the other Oath Keepers et al) I'd be extremely surprised if they couldn't find some more fodder.
As I understand it both Epps and Samsel say that Epps just told him not to attack police. They might both be lying but we don't have audio of what was actually said, so it seems hard to make the case that statement constitutes an agreement to commit a crime.
This is getting closer, but I don't think it reaches "beyond reasonable doubt". "MaroonPB" doesn't seem to acknowledge Epps in the video. He's talking on the bullhorn, and he keeps talking even as Epps is telling him to leave the pepper spray. I think a reasonable person could have some doubt as to whether there really was an agreement between the two men.
I'm unimpressed by assertions that further evidence must surely exist if only the FBI would look for it. Maybe so, maybe not. But the fact that someone has not been charged on the basis of evidence that we haven't seen seems like an awfully long stretch to conclude that he must be an undercover agent.
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What's your explanation for why the FBI removed him from its Most Wanted list?
My understanding is that he called them and identified himself.
I'm not actually sure what the purpose of a Most Wanted list is, but if I had to guess I would say it's for finding wanted individuals when you don't know who and/or where they are. If I'm correct in assuming that, then once you've located and identified a target, there's no reason to keep them on the list generating tips you no longer need.
The archives of those pages are linked in the first Revolver article, which shows the FBI had been updating the /wanted/capitol-violence page as each person's status changed (leaving each person's 'photograph number' the same). They were putting big red "ARRESTED" labels on everyone and leaving their picture up. The day before that July 1st update of quietly removing Epps, the top 50 people on the page had over 60% marked 'ARRESTED', while only two numbered suspects had been removed (Suspects #36 and #37, and then Epps #16 was removed the next day).
So the removal was clearly not just triggered by a successful identification. Moreover, based on looking at those red Arrest labels, it seems like their priority was roughly similar to the order of 'photograph number', where being Suspect #16 was close to the top (not many marked arrested in the 250-400 range at that time).
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