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... I'm on team don't break the law, fuckos when it comes to January 6th, but this seems to have a lot of overlap with past discussions you and I have had regarding the Molotov Lawyers and similar enforcement messiness, and come with many of the same problems. There is a genuine weakness when people point to two arbitrarily-selected examples and make a broader comparison without looking deeper, but it's very easy for demands for more scrupulous data to swing into isolated demands for rigor, or to require information that doesn't exist anywhere.
You put a lot of emphasis on the median conviction and sentencing for J6 defendants, and that's nice in the sense that it's readily available information. Yet the median (and mode) conviction and sentence is dominated by either 40 U.S.C. § 5104(e)(2)(G) (included in at least 412 sentences, "willfully and knowingly parade, demonstrate, or picket in any of the Capitol Buildings") or 18 U.S.C. § 1752(a)(1) (included in at least 115 sentences, "knowingly enters or remains in any restricted building or grounds without lawful authority to do so"). Some of those were included with other convictions, including more serious and/or violent ones. There's a lot of interesting space to be discussed in the broader context of what extent this is a typical enforcement action for this class of violation of the law, but it's not clear much of the necessary data exists anywhere (how many people weren't arrested at a previous capitol protest?), and very clear that it doesn't actually matter since quite a lot of people want strict enforcement because of the specific
Trump-election-related context.There's still a bit of quibbling still about Epps within that context but it's necessarily going to be quibbling.
((Epps plead to 18 U.S.C. § 1752(a)(2). There's some trickiness about comparing to other 1752(a)(2) convictions, of which the FBI describes just over 100, because the vast majority of those included other convictions -- just over a dozen were sentenced solely under 1752(a)(2), like Epps, only three of whom seem to have received probation, and one home detention. Even where the plea agreements are comparable, allegations are not, in either direction.))
As AshLael points out at length, Epps is neither accused nor alleged to have gone into restricted capitol grounds. People are claiming that Epps planned and encouraged a riot, and likely communicated with a number of others planning a riot. You correctly point out that not all those who've done that class of behaviors have been charged or even arrested, (though in turn I'd caution that Fuentes at least has been long-suspected of being a fed or CHS or informant or whatever, even before 2020). Those who have been charged and convicted with an emphasis on their encouragement of others to enter the capitol often also committed other acts, or had past criminal history, or both.
But, to borrow a phrase, "[n]either you or I know enough about this case". It's certainly possible that the videos Revolver has publicized were the sole and only circumstances where Epps did any communication to other people encouraging bad acts, that the context of those acts makes incitement charges implausible, and after a long history of totally-normally-for-Trumpist arguments woke up on January 7th with a hell of a hangover and immediately went full anti-Trump. It's also certainly possible that he's just a generic garbage person with a long history of generic garbage stuff that the FBI just finds below its standards, who blanched when actually in a riot rather than talking about it on IRC, and who squealed as soon as the spotlight focused on him. It's also possible that he's a garbage person who turned human source, who spent a lot of the months before January 6th planning and encouraging violent activities, and we'd never be able to see it. Or a wide variety of more- or less-charitable ways that less garbagy CHS get recruited.
((To be absolutely clear, my bet's on garbage person, because there are absolutely a ton of rightie garbage people. But I wouldn't be a lot of money, because no small number of garbage people end up with feds leaning on them to get bigger scores.))
Comparing him to Palm doesn't illuminate much, here; comparing him to the more general morass of rioters is even less useful -- even just for the specific question of whether Epps has been treated unusually or even uniquely, since whatever Yavoich did was nothing like what Epps is alleged to have done. Nor does it tell us anything about the extent matters look suspicious.
((Similarly, both the 60 Minutes and Congressional interviews don't impress; the questions are softballs and Epps still can't give very credible explanations.))
Now, maybe there's a fair criticism that people are holding this belief non-disprovably, based on little evidence, despite extreme unlikeliness. And while there are things that would make the Epps-as-fed claim much less likely, such as if a video dropped from the sky clearly showing him yelling not to enter the capitol, they're probably going to be exactly as persuasive as they are unlikely to be found. Indeed, there's ways that this can go full non-disprovable: in the previous thread, /u/jkf mentions "MaroonPB" as one of the people Epps was talking with before the riot broke into the capitol, and it looks like that guy was later ID'd and arrested as Ronald Loehrke. But he's still awaiting trial, after being released on recognizance, despite entering and leading some of the charge into the Capitol itself: is this evidence that January 6th rioters are being given the kid glove treatment and the FBI just wants to be absolutely sure about what appears to be a slam-dunk case? Or is it a sign Loehrke too is a 'fed' of some kind? Will we only know after his trial/plea and sentencing?
((Or is there some superposition here that would only collapse after conviction and sentencing, and maybe not even after that? After all, one of the fed informants for the Bundeys ended up with a pretty lengthy sentence himself.))
((Loehrke's codefendant, James Haffner, I can't figure out the current situation for, including if he's still being detained, and the man (allegedly) sprayed a chemical at capitol police.))
And were feds and human sources rare among the nutty right, I'd even agree with you. But they're not. You yourself have previously commented on a case involving J6 'ringleaders', where some of the defendant's own witnesses turned out to be (undisclosed-until-figurative-eve-of-trial) CHS. There's a fair discussion to be had about how this sort of evaluation needs to be handled, or how to discuss events where none of the data sources are especially trust-worthy, or what Bonferri knockoff we needs use to handle this sort of discussion with over a thousand examples to cherry-pick from.
But emphasizing the FBI's summary sheet isn't doing it.
As expected, you bring the scalpel that I look forward to these discussions. I want to first clear up distinct questions that seem to get conflated:
My post focused exclusively on #2, I didn't touch any of the rest. I did not find the informant allegation interesting enough to investigate further because even if it's true, so what? My suspicion is the reason Ray Epps received so much attention was as a bid to find a scapegoat for the violence and chaos that day. That theory is too incoherent to evaluate properly because it requires simultaneously assuming 1) J6 protestors had no plans to engage in violence and 2) J6 protestors could be prodded to commit violence (See previously Overkill Conspiracy Hypothesis).
Accordingly there is motivation to seek out any indication that Ray Epps was indeed a fed, and absent a damning confession, the only evidence likely available is circumstantial. That's why so much focus was on the fact that Epps was never charged with a crime, but then when he was charged the focus shifted on the lack of severity. The underlying assumption is that government informants do not get punished (or at least just enough to keep up appearances) which isn't unreasonable, but as you point out that's not necessarily true. There's nothing wrong with relying on circumstantial evidence (I did the same when I investigated the street pharmacist after all) but the problem here is when two premises start a circular reasoning chain reaction: Epps was treated leniently because he was a fed, and we know he's a fed because he was treated leniently.
You put in way more work than I did in dutifully comparing the relevant charges Epps and other J6 defendants faced. You're absolutely right that finding a proper contrast is fraught with confounding variables and near-impossible to do satisfactorily, and I don't claim to have a definitive answer. I started with the big picture and zoomed in by just examining whether I would have been able to pick Epps' case out of a pile, and nothing about him stood out. If someone wants to make the affirmative assertion that Epps was treated with unusual leniency, hopefully they have some evidence to demonstrate that rather than just wishing it was true.
I don't know that's true -- as I pointed out, the sole 1752(a)(2) conviction makes up only a tiny sliver of 1/6 convictions, the majority of people sentenced under it (and even those sentenced only under it) excluding Epps received prison sentences, often long incarceration. I haven't gone through too large of a group of broader cases, but both the procedural posture and the prosecutor behavior do not show up in a psuedo-random selection of cases on similar grounds. The majority of simple cases, even with pleas, received two or more years of probation. Those which received short probation either entered the Capital grounds later out-of-view of more violent protests, could make not-laughable claims of confusion about what areas were restricted, some medical or age-related concerns, or some combination of the above. Not all sentences above that 12-month line involve knowing statements that an action would be illegal, or disclaimer of responsibility (like Epps' deflection toward antifa), or a person bringing material preparations for physical violence (like Epps' tourniquets), but all are much more common above than below, and often used to justify home detention or short incarceration.
((And that's outside of the likely-spurious stuff. Epps doesn't show up on the DC FBI case list by name or case number as of today, which is just an organizational issue that'll... probably get fixed soon, and even if it doesn't is probably more the FBI being lazy than anything malicious.))
There's ways to square that circle: perhaps Epps was just better at playing his cards, or drew a prosecutor who was less willing to push harder (and to be fair, the sentencing request aimed for six months incarceration, just doing so very badly and without highlighting publicly-available information against him), or just got lucky on judge assignments ([Boasberg does seem to use a light hand even for morons), completely coincidentally. There's still a circle to square, here, even before adding in the media and congressional coverage.
But I think my deeper point is worse than even that.
I could pick Epps out of a stack, but I could also pick another thirty-odd people out, without much effort. Some of them have had comparable conspiracy theories, and some haven't even had significant media coverage: Loehrke seems in the first category, Haffner in the second. Doyle (sorry, her courtlistener is all Pacer-locked) received bizarrely short probation for someone who went in through a window and was turned in by coworkers. There's even a trio including a lawyer who managed to get comparable or even lesser sentences after going to trial, albeit some data weirdness on the courtlistener and DC DoJ page about them. With a sufficiently large dataset, there are always going to be outliers, and indeed many of the same things that made Epps a plausible fed also would have made him a normal outlier.
There's a fair complaint that this reflects too many degrees of freedom in the questions we're asking -- just as Wansink could always find something in a dataset, so could we find something here -- and to an extent that's even true. They're all weird, and weird in different ways, so you could trade off whether Doyle's sentence or Epps' advocacy or a handful of active-duty-military CAC-holder's military connections or a dozen other things are all The One Thing that matters most, and that you can makes the signal less relevant for Epps. But it still remains a signal.
I don't think that's a good model of the complaint, as it mixes to many different types of behavior together. All bad acts invite conspiracy theories at some level, especially when highly promoted in public awareness, as a way to shy away from the ramifications, but January 6th was not just bad or violent, but also involved people doing the single most identifiable things available, while also committing violations of a very distinctly different and not-especially-well-known set of laws.
The results would have been drastically different had J6 protestors planned for and had a fatal fistfight with counterprotestors on the Mall, or got shot trying to take the Washington Monument in some misguided belief it controlled space lasers emitting the magical smoke informing us of the next President's gender, or tried to storm Area 51 to force the US military to air strike DC, or done something stupid with the Secret Service trying to 'protect' Trump. Hell, even as someone who wrongly believed conservative protestors wouldn't riot, I'd caveated at the time that I'd expected something on that level (if, uh, more on the fatal fistfight side).
It would have still been bad! But we'd not have a thousand-plus cases simultaneously going through the legal system able to prove every part of the crime solely through video evidence and cell phone data present for the entire area they could have committed the crime, if only because it'd be really hard for a thousand people go Brutus on the Washington Monument staff, and a lot of them would flinch if you tried.
I don't particularly buy the conspiracy theory, because I know enough about crowd management and the sorta garbage people these protests invite. Zip tie dude neither planned at length how to kidnap a Senator and settled on zip ties, nor was a fed who brought them from home just to make a particularly photogenic picture, but grabbed them from a police officer and did as a moron does.
But while it's hard to prove the difference between people being lemmings and being lemmings-following-a-fed, it's easy to come up with possible evidence that would demonstrate a larger portion who had been planned these particular violations of the law beforehand. A lot of the evidence that could disprove this theory would be very interesting on its own merits! Do we see that?
I again admire and commend your thoroughness. At the big picture level, I'm unclear what we exactly disagree about. I don't deny that various factors played a role regarding Ray Epps's specific outcome. You mention two incriminating factors for Epps that appeared to have been ignored. He did indeed initially blame Antifa, but then also fully cooperated with law enforcement by calling the FBI on January 8th, and then sitting down for an interview on March (with a lawyer) where he admitted what he did was wrong. I don't see how having tourniquets can possibly be viewed as incriminating, it's normal for anyone attending a protest/rally to bring first aid supplies, especially with how violent 2020 was. I would concede your point slightly if he brought some offensive capabilities like a weapon, but even that is justifiable as self-defense precaution given how violent 2020 was.
I don't deny that the other cases you referenced had some odd outcomes, but it's still not demonstrating the original assertion: Ray Epps was treated with unusual leniency. Finding people with outcomes that are more lenient than Epps's doesn't tell us anything about that assertion. What would illuminate that question is someone with comparable conduct who nevertheless received a harsher sentence, and then ensuring that this hypothetical person wasn't just an outlier. I haven't seen this attempted, and people keep rejecting the comparisons I bring up on the other side by claiming those people (Fuentes, Jones) are probably feds too. This should be very easy if it was so obvious.
I agree that outcomes would have been very different had protestors tried to storm the Washington Monument or something, but as the classic saying goes if my grandmother had wheels she would have been a bike. I wouldn't expect any other location to have spawned 1000+ prosecutions, unless they also had the critical "very important government proceeding taking place" element. Regarding evidence of pre-planning, the most illustrative would be everything outlined in the Proud Boys sentencing memo. They created hierarchies, chain of command, recruitment standard, guidelines for communication, etc etc
If I'm understanding your arguments correctly, your position is that we have no evidence that Epps is a fed because he was not treated uniquely or unusually. My argument is that he has been treated unusually and possibly uniquely, but that this is not strong evidence he is a fed because there's enough of a spread of possible selection bias to pick such outliers.
Epps continued to state the possibility of antifa infilitrators over a year later during congressional hearings. Maybe that's not enough to overcome the question of remorse, and after all that's what sentencing is supposed to rest on. I can't even say, since the final reasons for sentencing from the judge are (afaict) almost always sealed in these cases. But there's a few people who did that sort of ambivalence -- albeit usually on social media rather than before Congress -- and it was read as evidence of insincerity.
I agree with you, but the DoJ does not. There are several informations or sentencing requests that highlight first aid, non-weapon personal protection such as body armor, or other non-weapon preparation (painter's mask!, sometimes explicitly to describe culpability or planning. Now, I can't prove how many other cases don't mention such a thing despite it being present -- we only know for Epps because he discusses it before Congress, after all! And yet back to the start we go again.
Yet in practice, it's impossible to show anyone charged with the same conduct. Only a handful of people were sentenced after pleaing or being found guilty of the same offense and only the same offense: I provided a list: 10 of the 14 include jail time, including no small number of plea bargains -- but almost all of them entered the Capitol proper, so that's not a fair comparison.
Same for 18 USC 1752(a)(1): I can easily show cases that showed similar or greater levels of remorse and admission of culpability but received home detention and longer probation, but the overwhelming majority entered the Capitol building, if only for minutes. The only cases I can show didn't enter the Capitol proper was a nutjob with a long criminal history, who brought her kid with her and tried/helped moved barriers, or maybe that one moron who ran for Michigan governor. They all got significantly harsher sentences, but there are easy ways to pull them as unique in their own various ways, and they're certainly either less remorseful or more plainly two-faced in their fake 'remorse'. Kepley is probably the closest, but you could readily argue (and I might agree!) that her sentence reflected assumptions her 'remorse' was especially fake or she had closer responsibility to attacks on police than shown in the indictment or sentencing memo, or just that she drew a hanging judge.
((You can even flip this analysis: there are a lot more sole-1752(a)(1) sentences, so out of all of them, you can pull three that received 12-month probation, though their fact patterns in turn (sorry, the courtlistener for this one is nearly empty) are drastically different. And that'd even be fair, although in turn I can readily point to the same nitpicks or exclusions.))
You can (and as far as I can tell, do) hold that this must mean Epps was charged unusually harshly. After all, I can only find three people with comparable sentences who didn't enter the grounds! (though, uh, that's not a deep search). But you're demanding a remarkable amount of rigor, here: trying to break apart whether they're the only three at all is rough enough. Figuring out and proving whether that means they were the only people to commit that particular offense but no further, if those others who did either weren’t caught yet or have yet to be sentenced, or if the DOJ decided to do some sub-criminal investigation punishment, would range from incredibly difficult and expensive to impossible at a philosophical level.
((This, on top of their long-proposed fedishness, is part of why Ali Alexander and Fuentes seem like distractions. They fit into AshLael's defense of not-committing-technical-crimes closer than Epps, who plead and had long admitted to crossing into restricted grounds.))
That's fair. I've got some quibbles about it, but got more weight as evidence than the vaguer assessments of non-uniqueness. As I’ve said, I don’t buy the Epps theory. But it’s easy to dismiss as not-even-wrong when you aren’t really engaging with it.
I think I understand the disagreement here. First, I would state my position on whether or not Epps is a fed is almost entirely divorced from whether or not he was treated leniently. That can sometimes be a factor, but it's barely relevant here. On whether or not he was treated leniently, I agree with your point that there's enough of a spread for outlier cases that it's difficult to do a 1:1 comparison. Defendants are not cloned mimes after all.
For what I understand you focus significantly on how rare his charges are, and I should have said this more explicitly but the specific statute he's charged with barely matters because he entered a plea. The fact that he plead guilty 2 days after his indictment was filed indicates his plea deal was negotiated ahead of time. Two days is not enough to send out a summons notice, and federal court definitely does not move fast enough to have allowed a plea deal negotiation to take place. If a defendant already agrees to plead, the prosecutor doesn't really care which specific statute they plead guilty to, because fictional pleas are very very common (and legally sanctioned!). In my work, prosecutors regularly ask me to suggest a charge my client would plead to.
It's less the specific charge -- you note fictional pleas, but even beyond that the relevant statutes are just vague and open-ended enough that a good half-dozen can fit pretty easily -- and more the behavior I'm trying to isolate down, and with things like charges and sentences are the closest proxies that the USAO DC page you linked actually exposes. I bring 40 USC 5104(e)(2)(G) and 18 USC 1752(a)(1) because they're the only other convictions that have similar or lesser sentencing that what Epps faced in the entire spreadsheet.
In an ideal world, we'd filter by what the alleged (or actual) behaviors were, but I tried throwing a couple scripts at the full USAO DC setup, and between missing pdfs (Andrew Morgan's courtlistener page makes him look like he got slapped more for his political views... but only because his sentencing request is still pacer-locked; taking it from other sources makes clear he behaved unusually poorly), heavily obfuscated descriptions, or bizarre descriptions... well, I got those three I mentioned last post out who didn't enter the capital building proper, but I also got another ten that did go into the building, and I'm 90%+ sure there's some false negatives.
((And I'm still finding typos and misfiles and stupid case citation errors, but that's more typical.))
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