Of all the distortions and paranoia that Tucker Carlson has promoted on his since-canceled Fox News show, one looms large: a conspiracy theory that an Arizona man working as a secret government agent instigated the assault. of January 6, 2021 against the Capitol to sabotage and discredit former President Donald Trump and his political movement.
What is known of the man – a two-time Trump voter named Ray Epps – is that he participated in protests in Washington that day and the night before. He was filmed urging a crowd to march with him and enter the Capitol. But at other times, he pleads for calm once it becomes clear that the situation is turning violent. He can be seen walking past a line of Capitol police at the barricades, but he never goes inside the Capitol.
Federal prosecutors did not charge Epps with a crime, instead focusing on the more than 1,000 other protesters who acted violently or entered the Capitol. The Justice Department’s sprawling investigation into the attack remains open, however, and Epps could still be charged.
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Yet for more than 18 months, Carlson insisted that the lack of charges against Epps could only mean one thing: that he was protected because he was a secret government agent. There was “no rational explanation”, Carlson told his audience, why this “mysterious figure” who “helped organize the insurrection” had not been charged.
He repeated Epps’ name over and over – in nearly 20 episodes – imprinting it on the minds of his viewers.
Epps was in the Marine Corps but said in his January 6 committee deposition that he had never otherwise worked for a government agency. He and his wife, Robyn, fled Arizona and are hiding in another state, having sold their wedding business and ranch after receiving death threats from people who appeared to believe in the conspiracy theory . And his legal peril is far from over as prosecutors are still uncovering Jan. 6-related cases.
Now, attorneys representing Epps and his wife are considering suing Fox News for defamation. “We informed Fox in March that if they did not issue a formal on-air apology, we would pursue all available avenues to protect the rights of Epps,” said Michael Teter, an attorney for Epps who sent to the network a cease-and-desist letter demanding an on-air apology and retraction. After Teter didn’t hear from Fox about his request, he began to prepare the costume. “That remains our intention.”
Epps declined to comment on her potential costume. A Fox News spokesperson declined to comment.
Carlson also declined to comment. But he continues to push the false idea that the Jan. 6 attack was staged by anti-Trump elements in government. In a podcast last week, Carlson claimed the riot “was not an insurrection” and that the crowd that day was “full of federal agents.”
First Amendment experts say Epps has a viable defamation case — one reminiscent of the lawsuit the network recently settled with Dominion Voting Systems for $787.5 million, a case centered on numerous examples of misrepresentations made on Fox News programs over a long period of time.
If Epps goes ahead, the case would be another legal complication and reputational stain for the conservative network, which faces a growing list of lawsuits related to spreading false claims about the 2020 election and its aftermath. . They include a $2.7 billion lawsuit from a second voting technology company, Smartmatic, and two separate claims from Fox Corp shareholders. Another lawsuit filed by a former Carlson producer, which Fox settled on June 30 for $12 million, alleged he condoned and encouraged a toxic workplace.
A libel suit by Epps would be further evidence of how Carlson continues to give Fox a headache long after the network relieved him of his anchor duties. Fox executives pulled him off the air after his text messages, which became public as part of the Dominion lawsuit, revealed he had expressed hateful and racist sentiments.
On air, his behavior had begun to irritate senior Fox executives, including Fox Corp. CEO Lachlan Murdoch, who disliked Carlson’s continued promotion of conspiracy theories about Jan. 6, which had drawn reprimands from Republicans, including Senator Mitch McConnell. On the day he was informed that his show had been canceled, Carlson had planned to air another segment on Epps, according to a tweet from an authorized biographer of the host, Chadwick Moore.
By design, defamation law tilts heavily in favor of the news media, making it difficult to be held liable for the defamation of public figures – who are often the targets of media reports – unless it there is no evidence that the defendants either knew what they said was untrue or acted with a reckless disregard for the truth. Epps could argue that Carlson repeatedly made statements about him from October 2021 to March 2023 that were baseless, or easily explained or contradicted by facts reported in numerous news reports.
“His challenge is to get a judge, if he sues, to say it was so inherently, bizarrely unlikely that only a reckless person would put it out there,” said Rodney Smolla, president of Vermont Law School. and libel expert who consulted for Dominion during its lawsuit against Fox News.
“No case is easy,” Smolla added, “but this one is certainly, in my view, viable.”
The attacks on Epps began circulating online after a video taken the night before the attack on the Capitol. It shows Epps at a pro-Trump demonstration on a Washington street shouting that he planned to march to the Capitol and enter it. After a pause of a few seconds, he adds: “Peacefully”. Some in the crowd start chanting “Fed! Feed! Feed!” to him, implying that he was a government agent trying to entice Trump supporters into committing a crime.
Another video, taken Jan. 6, also shows Epps encouraging people to march to the Capitol. Then he leans down to whisper in a man’s ear moments before the man and the rioters overwhelm the police and break through the security perimeter around the Capitol. It’s hard to hear what Epps is saying in the video.
Law enforcement immediately took note of Epps’ suspicious behavior and put a picture of him on an online wanted list. Epps said he called the FBI’s National Threat Operations Center shortly after the alert was raised, and his phone records show he spoke to officers there for nearly an hour.
When the bureau removed him from the list — months after agents formally interviewed him and his son in the spring of 2021 — Carlson and others claimed that Epps’ disappearance and lack of charges criminals meant that the government protected him.
In his programs, Carlson claimed that Epps was a liar and demanded that he be arrested. In a segment that aired shortly before Fox News canceled Carlson’s show in April, he showed viewers an image of the FedEx logo that had been edited to say “FedEpps.”
The fact that Epps has not been charged is largely consistent with the hundreds, if not thousands, of individual decisions the Justice Department has made in its extensive investigation into the Capitol attack.
Only a handful of people who broke through the Capitol’s barriers but never entered the building were charged, and no defendants were charged with incitement. The incitement charges against Epps would be particularly difficult to prove given that he ultimately sought to defuse the crowd, and his most vocal encouragement to enter the building occurred the night before the attack, which almost makes impossible to show that his words had an immediate effect. .
What Epps whispered to this man on the day of the attack was answered three times: in an interview the FBI conducted with the man Epps had spoken to, Ryan Samsel; in Epps’ own interview with authorities; and in a podcast interview with a co-defendant in the Samsel case. All three said Epps urged Samsel to calm down.
“He came up to me and he said, ‘Dude’ – his whole words were ‘Relax, the cops are doing their job,'” Samsel said, according to a recording of his FBI interview.
Carlson, in his legal defense, could point to inconsistencies in Samsel’s account. He was also able to note that Epps had texted a family member, long after the riot had ended, saying he had helped “orchestrate” the movement of people to the Capitol.
There are also unresolved legal questions about whether Epps really suffered damage to his reputation if the only people he likely lost his esteem with are those who believe Jan. 6 was a just cause.
“The question I would ask if I were Tucker Carlson’s attorney,” said David Logan, former dean of the Roger Williams School of Law, “should Epps be able to claim defamation when people who think less well of him are criminals?”
“The courts have struggled with this exact question,” he added, pointing to hypotheses such as a man suing over false claims that he is gay, or an anti-abortion activist who claims to have been wrongly accused of having had an abortion.
Carlson could also rely on the ambiguous and indirect language he sometimes used to describe Epps. For example, he repeatedly said he couldn’t be sure if Epps was really a double agent, acknowledging, “We don’t know anything about him.”
An indictment of Epps could also complicate his defamation case, making any reputational damage claims more difficult. “The centerpiece of a defamation case is alleged damage to reputation, so it may become more difficult to prove that you have suffered a consequential loss if your reputation is already bad due to truthful information,” said said RonNell Andersen Jones, a professor. at the SJ Quinney College of Law at the University of Utah. “But the issues are often complex.”
Only if a judge allows a case to proceed, Logan said, will his lawyers know how strong their position is.
“Unlike Dominion, without Epps filing a lawsuit and obtaining a broad discovery, we cannot be sure that Tucker Carlson had doubts about the veracity of the allegations,” Logan said. “Or that similar doubts have gone up the chain of the company.”
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