Wishing For Entrapment

I spent way too long down the Ray Epps rabbit hole and I want to spare you the pain.

Epps is a 62 year-old man who was at the J6 Capitol riot and was one of the first people the FBI sought information on. He appeared in scores of videos from that day and the night before loudly encouraging everyone to go inside the Capitol, prompting right-wing livestreamer Baked Alaska and others at the scene to accuse him of being an undercover federal agent/informant.¹ Despite his encouragements to others, Epps never set foot inside the Capitol. Since that day, he’s been the focus of an overwhelming amount of attention from right-wing media figures accusing him in various different ways of being an agent provocateur who either orchestrated, initiated, or at least encouraged the J6 riot. Revolver News was the first outfit to really run with this theory (they even included multiple video clips of Epps trying to de-escalate the crowd).

I was aware of the ‘fed’ allegations, but never found them interesting enough to investigate further, because even if they’re true, what then? What does it change? The reason I believe Ray Epps received so much attention is as a bid from Trump’s base to find a scapegoat for the violence and chaos that day. I wrote about this search mission just days after J6, when the talking point back then was to blame the whole thing on Antifa. The ‘J6 was an entrapment scheme’ theory is too incoherent to properly dissect 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 (related: Overkill Conspiracy Hypothesis).

For those who remain attached to the theory, there is an intense motivation to continue searching out for any confirmation that Epps was indeed an informant, because it could then buttress the idea that J6 protestors were blameless? But despite significant efforts by politicians and journalists, no smoking gun has been uncovered although realistically all you could reasonably expect is circumstantial evidence. With Epps, the initial focus was on the fact that despite ample footage of his presence at the Capitol encouraging others to go inside, he was not charged with a crime. Once he was charged with a misdemeanor in September 2023, the focus shifted the lack of severity. Now that he has finally been sentenced, the focus has shifted to the fact that he avoided jail time.² 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.

I would like to think I have some practical experience in evaluating whether a given defendant is treated with unusual leniency/harshness, including some real world experience with unveiling government informants. I once had a client arrested along one other guy at the same place, both for illegally possessing a firearm. Both were felons with comparable criminal history but in addition to a gun, the other guy also was caught with what the cops referred to as a “pharmacy” of drugs in his backpack (very likely worth at least $20k on the street) and also very openly admitted to police that the gun was his. So it was really weird that my guy got charged with a gun felony while the street pharmacist was charged with only a gun misdemeanor and offered a diversion program on top of that (charges get dismissed if he stays out of trouble). I investigated more of the pharmacist's background and found out he’s been arrested at least three times within the last year for exactly the same conduct (gun + drug backpack) and each time no charges were filed. I had no way of proving this conclusively but the only explanation that made sense for how he kept avoiding criminal liability was that he was an informant or cooperator of some kind. Letting the prosecutors know I was aware of pharmacist’s disparate treatment was likely instrumental in getting my guy a misdemeanor plea offer as well.

On the specific question of whether Ray Epps was treated with unusual leniency by the criminal justice system, a reasonable starting point is to examine the severity of charges and sentences that all other J6 defendants received. The DOJ and other sources make this information very easy to find. At least from a bird's eye view, nothing about Ray Epps pleading guilty to misdemeanors (505 out of all 1,265 J6 defendants also did), avoiding jail time (282 out of 749 convicted J6 defendants also did), or avoiding pretrial detention (70% of J6 defendants also did) stands out as unusual.

Now, finding a proper contrast is fraught with confounding variables and it’s near-impossible to do satisfactorily, so perhaps a bird’s eye view is too diluted to be worthwhile. Unfortunately, we don’t have the privilege of spawning a gaggle of Ray Epps clones and running them through the gauntlet to see which variables make a difference. We can deconstruct Epp’s J6 conduct broadly into three factors:

• Present on Capitol grounds on J6

• Did not enter the Capitol

• Encouraged others to enter the Capitol

There were an estimated 10,000 people present on the grounds that day, and an estimated 2,000 entered the building, but so far we only have 1,265 defendants. So the first two factors don’t help us narrow down Epps’s culpability. Finding someone caught on tape precisely asking people to enter is going to be a challenge, but a few fit the bill.³ Proud virgin Nick Fuentes explicitly said “Keep moving towards the Capitol! It appears we are taking the Capitol!” on a bullhorn. Ali Alexander posted a video on January 7th saying “I did call for people to enter the US Capitol” and later during a livestream “I started a riot for the sitting president of the United States”, though he also admitted elsewhere he's prone to exaggeration and hyperbole.

Neither Fuentes or Alexander ever entered the Capitol, and neither have faced any charges. Moreover, a judge even examined Alexander’s conduct and dismissed him from a civil lawsuit brought by Capitol Police officers because the judge ruled his speech did not rise to the level of incitement. So compared to these two, Epps was treated harshly despite what appears to be similar conduct. Unlike those two, Epps already appears to have fully cooperated with investigators, having called the FBI on January 8th immediately after recognizing his photo.

Maybe the timing for how long it took to charge Epps is relevant? There’s a lot of hay made about the fact that apparently nothing happened until Rep. Thomas Massie directly confronted Attorney General Merrick Garland about Ray Epps. That confrontation took place on 9/20/23, but charges against Epps had already been filed two days prior on 9/18/23. Moreover, Epps appeared in court on the afternoon of the 20th to plead guilty, which would only happen if the plea was negotiated ahead of time (I would guess at least a couple of months based on my experience with federal prosecutors). If we nevertheless assume the timing was more than just a coincidence, wouldn’t it be an indication that the DOJ prosecuted Epps as a bow to political pressure?

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If you haven’t experienced it, it can be difficult to imagine what it’s like to be in the center of such a deranged nationwide fixation. I’ll quote from Ray Epps’s sentencing memo submitted by his attorney:

Anonymous persons emailed death threats. Trespassers on their property demanded “answers” about January 6th. People came up to Mr. Epps and warned him to sleep with one eye open. After Tucker Carlson amplified the lies spread by Revolver News, Mr. Epps’ wife discovered (and collected as evidence) shell casings on the ground near the bunkhouse of the farm-style wedding venue that they owned at the time in Arizona. Mr. Epps received a letter from someone claiming to have been brought into the country by the Mexican drug cartel and that cartel members had talked about killing Mr. Epps. A whole busload of people came by his property – interrupting a wedding ceremony – to shout threats at Mr. Epps.

Mr. Epps and his wife worried – they feared. They sold their property, including their business among it. They sold their property. They sold their house. They fled. They moved from Arizona, where each had lived most of their lives to another state. They now live in hiding in a trailer. Fear of demented extremists has no apparent end in sight so long as those who spread hate and lies about Mr. Epps don’t speak loudly and publicly to correct the messaging they delivered.

If I had to choose between a jail sentence and the omnipresent paranoia described above, I’m not sure how many months in jail would be the break-even point. Epps may have been a total idiot for going to the Capitol in the first place, but I’m willing to give him credit for stopping himself in the act and turning around.

There are a lot of parallels here with how the Israeli right-wing couldn’t grapple with one of its own assassinating their country’s prime minister in 1995. Cognitive dissonance is a powerful thing, and there’s no practical limit upper limit for what is tolerable collateral damage in the pursuit of ridding oneself of its discomfort. If someone wants to make the affirmative assertion that Epps was part of the apparatus that orchestrated an entrapment scheme on J6, hopefully they have some evidence to demonstrate that rather than just wishing it was true.

1. You’ll be interested to know that Baked Alaska nevertheless did indeed go inside the Capitol after all, livestreaming his actions the entire time. He eventually plead guilty and was sentenced to 60 days in jail.

2. The operating assumption here is that government informants do not get punished (or at least get punished just enough to keep up appearances) which isn't unreasonable, but it’s not necessarily true. A 53 year-old man involved in the Bundy Ranch standoff in 2014 was acknowledged to have been an FBI informant but nevertheless sentenced to 68 years in prison. The judge noted his health issues and informant contributions and magnanimously shaved off 5 years off the statutory maximum. So he’ll only be 121 years-old when he gets released instead of 126. Yay!

3. Special thanks to the remarkable effort Reddit user half_pizzaman put in compiling a jaw-dropping amount of information on this topic.