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Last week, @SlowBoy posted about Ray Epps being sentenced to probation and asserted this was a "uniquely generous outcome" for Epps. I was puzzled by this assertion and so I asked some clarifying questions and most of my responses were heavily downvoted. As a barometer of community sentiment, I tried to understand why my questions would be met so negatively and so this post is my attempt to formulate some theories. I am open to feedback on how I can post better!
Theory 1: I focused on the wrong parameters for evaluating Ray Epps' situation
I would like to think I have some practical experience in evaluating whether a given defendant is treated with unusual leniency/harshness. I once had a client who was 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 is that he was an informant 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.
Obviously that was a serendipitous comparison scenario, but when I was presented with Ray Epp's situation the reasonable starting point was to examine the severity of charges and sentences that 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) seemed unusual.
If there are factors besides the severity of the charges, sentencing, or pretrial detention that I should have evaluated instead, I would love to know about them. Maybe I can even use this information at my real job.
Theory #2: I posted false or misleading information
Maybe I focused on the correct parameters, but DOJ information is either false or misleading? That's certainly a possibility, and it wouldn't be the first time a government agency made shit up. But if so, either some evidence of this duplicity or some alternative source should be offered and I'm aware of neither.
Theory #3: I posted truthful information that people thought was false or misleading
This is an online forum and we often shoot from the hip when posting. Sometimes mistakes happen. @HlynkaCG for example responded to my questions by offering two points of comparison as a contrast to how Ray Epps was treated: "we had so-cal soccer-moms and that guy who took a selfie sitting at Nancy Pelosi's spend over a year in prison only to be released after pleading to misdemeanors." I don't know who the soccer-moms are but the Nancy Pelosi reference is presumably referring to Richard Barnett who was convicted of 4 felonies and sentenced to 54 months in prison, definitely not "released after pleading to misdemeanors". As I showcased more than a year ago, this wouldn't be the first time someone here makes a confident assertion on the topic of J6 or on related election fraud theories that are not necessarily reflected in reality.
Speaking personally, I would react with genuine gratitude if anyone pointed out I had made a false or misleading assertion, because it's not something I ever wish to repeat intentionally. Part of that effort requires introspection to investigate what went wrong in the process. I again maintain there is absolutely nothing shameful about making mistakes, and part of what I value about this community is how much we celebrate remedial acknowledgement and introspection for faulty thinking and I hope HlynkaCG can shed light on the matter.
Theory #4: I posted truthful information that could lead to false or misleading implications
This reaction is commonly encountered, and likely stems from a poor decoupling ability. For example, it's likely true that Africans had a higher life expectancy enslaved in the US than they did free in Africa at the time of the slave trade. Whether or not this is true is purely a factual determination, but many people can't help it and get ahead of themselves to pre-emptively address what they believe are necessary implications of this fact. The only way that the "slavery can raise life expectancy for the enslaved" fact could in any way threaten the position of "slavery is bad" is if the former is a significant pillar of the latter, or if someone had succumbed to 'arguments as soldiers' mentality. The classic example of this scenario is AOC's famously-lampooned "Factually inaccurate but morally right".
And so I've often wondered if this is driving part of the negative reaction to fact-checking J6-related claims. Maybe challenging one specific premise (Ray Epps was treated with unusual leniency) necessarily challenges an overall conclusion (J6 defendants are treated unfairly) because someone assumes the two are coupled at the hips together:
I don't know what the solution is to this lack of decoupling. It's really hard to teach nuance.
Theory #6: I'm ruining the fun
People have deeply cherished beliefs they want to hold on to, and challenging those beliefs ruins the prospect of a good time. This is the least charitable theory obviously. The operating principle of the Motte is to be "a place for people who want to move past shady thinking and test their ideas" but unfortunately this has and will forever risk being prescriptive more than descriptive. Cognitive dissonance and confirmation bias clearly exist but it stretches my empathy to its limits for me to try and understand what could motivate someone to sacrifice truth-seeking in order to pursue belief affirmation points. I don't understand it and, given the nature of its manifestation, I don't anticipate a transparent confession. I offered a template of what an introspective admission could potentially look like when I admitted to having previously believed in abolishing police/prisons despite my awareness that I lacked the ability to defend those beliefs, but maybe that confession was only possible because enough time had passed to give me distance from the sting.
True to the spirit of this post, I'm open to being proven wrong.
... 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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I didn't reply to you at the time because I thought the conversation up to before you posted had covered everything important. I didn't downvote you.
I think you posted true-but-misleading information. Sure, Ray Epps was not the only J6 protester to only receive probation. In that respect, his situation is not unique. However consider the other elements that make his case totally unique:
He is on video having encouraged protesters to go into the Capitol Building, and on record before J6 wanting to invade the Capitol. He did not go into the building even as he encouraged others to do so.
He was on the FBI's most-wanted J6 protesters list up until the moment news organizations (Revolver News) started covering him. He was only charged after Merrick Garland was asked about him in a hearing. (I do not have the video in front of me, as I recall it Garland was asked about Eps not by name but in terms that could not have referred to anybody else.)
Eps was undercharged relative to other manor J6 figures, especially in the context of other figures being overcharged. (What's the "baseline charge" protesters deserve? That's a subjective unanswerable question. However I think it's hard to contest that the whole J6 prosecution is unprecedented in American history, and even if you think DOJ is justified, it's hard to argue why Eps wasn't charged more seriously.)
Leftwing news outlets and even the judge at trial all bewailed how poor Eps was made to suffer as the victim of conspiracy theories. This is uniquely generous! Maybe there are some other outliers (I know there's some grandma who went viral by apologizing for her participation and calling MAGA a cult). But, by and large, the same people calling J6 an attack on democracy are saying Ray Eps is a victim. Why? -- he wanted to attack democracy! I am not aware of the judges treating anyone else so leniently.
Epps' suit against Fox News will be allowed to continue, suggesting the possibility that he could win millions of dollars. It's shameless. I don't suppose some secret tribunal met and decided that Ray Epps gets his payout. But nobody in DOJ is working to stop him from making millions. If the DOJ didn't like this, they could try to find something else to charge him with. (Double Jeopardy is no guarantee -- the DOJ made big headlines about potentially investigating Darren Wilson over shooting Mike Brown. If Merrick Garland wanted to, he would get on TV and say Epps deserves to be looked at again.)
Conclusion: Ray Epps was handled uniquely leniently, in a way most people would understand those terms. Epps' treatment only looks normal within the context of an excel sheet of convictions, which doesn't tell nearly the full story.
On a purely academic level, I wonder if there's an argument that, in isolation, "he's a fed!" is not actually defamatory. The claim is (I assume) that he was defamed as "working for the feds by encouraging protesters to enter the Capitol," but the second half of that claim is pretty evidently true from the video evidence. Is the first half alone, even if it is false, a negative claim about a person? I'm sure it is to some people, but it seems fraught to allow a court (in which most of the professional parties probably see "working for the government" as a positive, or at worst neutral claim) to generally rule as defamation something that only a small minority actually find disparaging. The overall claim is probably disparaging to the government itself, but I'm not aware of any law against alleging government conspiracies.
Sure, I believe he's received a bunch of hate mail for these accusations, but I'm pretty sure that's par for the course of anyone who achieves that level of infamy.
Can’t find the court docs at the moment, but
If he is able to prove financial damage to his business, that’d probably satisfy the legal requirement.
If the statement is not defamatory as a matter of law, damages don't matter.
Sorry, I was unclear.
I think the alleged harms to Epps’ business satisfy the fourth element of defamation. I’m not commenting on the other three.
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https://revolver.news/2023/07/against-all-odds-rap-legend-tupac-shakur-shot-down-ray-epps-defamation-claim-against-tucker-and-revolver-news/
Revolver news agrees with you.
Turns out that there's actually legal precedent that calling someone a government agent doesn't count as defamation.
I think you'll find there's some reason this precedent doesn't apply in the instant case.
I think that's a fairly likely outcome. Hell, given Fox's actions as of late I wouldn't be surprised if they throw the case and just give in anyway because the legal settlement would be worth paying in exchange for the political outcome.
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I think the 'fed' modifier turns it from "honest person encouraging protestors to enter the Capitol (true)" to "dishonest person sets other people up to get arrested." It's not the working for the government that is defamation, it's the claim that he orchestrated a false flag.
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Edit: Merrick Garland timeline, and MAGA grandma below
I really appreciate the specifics in your response! I'll go point by point first, from the standpoint of how unusually Ray Epps was treated:
Factor 1: Epps encouraged others to enter the Capitol
It's true that Epps 1) repeatedly encouraged others to go into the Capitol "peacefully" (whatever that means) and 2) did not enter the Capitol himself. Moreover, he's captured on video trying to calm protestors down. I agree #1 is a negative factor for sentencing, but would you agree that #2 is a positive factor for sentencing? I don't know if the two factors exactly cancel each other out but it's fairly routine for the legal system to have drastically lowered penalties for criminals who change their mind at the last minute.
Besides that, both Alex Jones (though he did say "We are peaceful" and "we need to not have the confrontation with the police") and Nick Fuentes ("Keep moving towards the Capitol! It appears we are taking the Capitol!") encouraged others to march towards the Capitol but did not enter themselves, and unlike Epps neither of them were charged with any crimes.
Because far more prominent individuals who encouraged others to go to the Capitol and were not even charged, while Epps was charged with misdemeanors, this particular factor does not indicate that Epps was treated unusually. What do you think I'm missing?
Factor 2: FBI's most wanted
It's true that Epps was put on an FBI "Seeking Information" list as Photograph #16. He still shows up on Twitter, but no longer on the official list, but lots of other photos have also been taken down from that list (they're numbered sequentially so if you start at the beginning you'll see it goes 1, 2, 5, 9, 13, etc). I don't understand how this is indicative of unusual treatment if the FBI is removing dozens (hundreds?) of other photos.
Regarding the timing of charges, it's true that Epps wasn't charged until a mere 3 days after Merrick Garland was asked about him.[Edit: I hadn't looked closely when I posted this, but Merrick Garland was asked about Ray Epps by Thomas Massie on 9/20/23 and charges against Ray Epps were actually filed two days prior on 9/18/23. Epps appeared virtually in court on the 20th to plead guilty, which heavily indicates the plea was negotiated a couple of months prior]. The timing could be more than just a coincidence, but in what direction? You could argue that Epps was treated unusually harshly if you compare his conduct to Jones and Fuentes (who have not been charged) but you're arguing the opposite and I don't understand how.Factor 3: Undercharged relative to others
It's true it's difficult to draw a direct comparison about conduct regarding what the "baseline charge" should be, but you're begging the question by saying Epps was undercharged "relative to other major J6 figures". Regarding his specific conduct (and not the attention he's garnered) why should Epps be considered a major figure to begin with? To conduct any comparison it would be helpful if you can identify an illustrative example of a J6 defendant who acted similarly to Ray Epps but was charged/sentenced much more harshly.
Factor 4: Victim of Conspiracies
This is a recursive argument. The judge at his sentencing said "While many defendants have been vilified in a way unique to Jan. 6, you seem to be the first to have suffered for what you didn't do". I don't deny that's a unique situation, but to establish that Epps was treated uniquely generously you need a baseline to compare against.
I don't know the grandma you're referring to[Edit: Found what I think is the grandma, who entered the capitol and got 2 months in jail], so all I have to compare against is the fact that Epps avoided jail just like 37% of other convicted J6 defendants.Maybe if we had a hypothetical Ray Epps Two who was the subject of similarly intense conspiracy theories but whose sentencing judge did not acknowledge his suffering then you could argue that Ray Epps One was treated unusually generously, but if it's not reflected in sentencing why would that matter?
Factor 5: Epps' suit against Fox News
I don't understand any of this. Why is the suit shameless? How could the DOJ possibly stop Epps from suing Fox News? Even if somehow they charged him with triple-digit felonies, he would still be able to sue (almost a quarter of federal lawsuits are filed by prisoners!). This is a baffling point.
TL;DR
Fuentes is widely believed to be either operated by feds due to threat of prosecution, or behaving as if he were by playing the persona of the degenerate racist piece of shit. Exactly what the media wants. He does nonsensical things like that time he endorse a schizo black man for .. president ?
Alex Jones is a non-stop noise generator who can discredit anything by merely speaking about it. Those aren't really the best examples.
That's fair pushback, what examples would you suggest as superior comparisons? From another post of mine:
Are there any people like him who were on the scene, that loud who got no actual time?
I already mentioned Fuentes and Alexander who were on the scene and loud and were never even charged.
If "Alexander" refers to Jones, then you are again being misleading.
I'm not sure how you could've missed that I was talking about Ali Alexander, that was only one level above.
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(sigh)
Yes, we all live in Surkov's world, despite not even being Russian.
I don't understand what this means
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First off, I think you mean "into" here. But anyway, complete side track, but it's sort of hilarious watching this regularly-scheduled program on a completely different screen than watching the Section 3 disqualification program. Like, here, the fact that someone just encouraged others to go into the Capitol is good reason to not charge them. But ya know, with Trump, he didn't even do that, yet it is clearly and obviously "engaging in insurrection".
No I meant "to" because I didn't see anything about Alex Jones encouraging others to go inside. I don't know what you're referring to about regularly-scheduled program, it's hard to compare behaviors from different people because people don't act like mimes and do exactly the same thing at the same time at the same place. Best you can do is outline what the relevant factors and dimensions are and then analyze the actions according to that template. Inevitably you're bound to encounter reasonable disagreement throughout that process.
I mean, I agree with basically your entire comment about what we can do. The bit about "regularly-scheduled program" is that if you just look at the screen about this topic, it might on the surface look like everyone is doing this sort of 'best thing', outlining relevant factors, etc. It looks like the normal, ho-hum, program of people doing the best thing. Alternatively, if you just look at the screen about Section 3 disqualification, it might also look on the surface like everyone is doing this sort of 'best thing', outlining relevant factors, etc. But then it just strikes you when you see both of them smashed together. Like, really?! Trump "engaged in insurrection" on one screen, but we appear to have just an entirely different outline of relevant factors on the other screen. Just wild in contrast.
That's how the law works in general. There's enough precedents and opinions laying around that in any given case, you can credibly apply them to make the case go either way; in fact, almost every case has at least one lawyer on each side doing just that. So how do you actually decide the case? By criteria outside the law, which you then justify using the appropriate set of precedents. If you really can't find any which support the thing you want... make something up that sounds all legal-like, building on the closest thing (e.g. the "bad actor" test making Trump's speech not eligible for First Amendment protection).
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Before I respond to any specifics I want to lay out a few general suppositions: I think it's totally reasonable, almost necessary, to believe that the FBI had informants in MAGA groups and at J6; J6 prosecutions (even if you think they're legitimate) have a strong political dimension.
I can't read Epps' mind; I don't know how thoroughly the FBI was embedded in J6 attendees; I don't know whether the FBI orchestrated any part of J6 or it's only been weaponized in the aftermath; I don't have and might never have any records that will prove anything beyond a shadow of a doubt. I do know that some specific people have been caught lying about J6 (the J6 Committee, government reports of officers killed, Nancy Pelosi's bodyguard, etc.).
Let's concede that it's entirely possible Epps could really be innocent. We're all just filling in blanks here. But for the reasons already discussed, I do not find Epps' total innocence very likely.
Onto some of your specific points:
Jones is not known to have been near the Capitol at all: he was speaking from Lafayette Square. This is in a different category from Epps, who was present at the Capitol and encouraging people to go in (while pointedly not going in himself). I don't think this is an apples-to-apples comparison.
The lack of charges for Fuentes are taken as suspicious by many people. It's openly discussed whether he was a Fed. I have not bothered looking into the accusations, there are a lot of arguments floating around. My supposition is that he's been a party to so many shenanigans by this point that the Feds would be stupid if they haven't at least tried to recruit him. He could also be genuinely that dumb.
In part because he was near the top of the FBI's J6 List until he wasn't. In part because he's a highly-visible face saying everything lefties have accused J6 of representing. He was an Oath Keepers chapter president. He he was on restricted Capitol Grounds. He fits the exact profile of people who have been otherwise severely charged.
Granted that Epps is not an Alex Jones, or Enrique Tarrio, or someone who otherwise might have been presumed to be a leader within MAGA before the J6 events. But that's not the only qualification. Epps is perhaps the most visible face of protesters agitating to enter the Capitol, the very proof that J6 was part of serious sedition, and all he gets is a slap on the wrist.
Yes? I don't disagree, but don't know how that's relevant to whether Epps was treated with unusual leniency.
Innocent of what? He already plead guilty.
That's totally fair that you don't think Alex Jones is a good comparison, so who would you propose comparing against? You can't say that someone was treated "unusually" unless you already have a comparison in mind, so who are you comparing Epps against?
I don't know what you mean by "near the top" except that he was one of the first to be put on the 'seeking information' list. Chronology does not determine severity, so why is this significant? What does it mean to have a highly-visible face? People know who he is because he received significant right-wing media attention, so is that your metric? What are lefties claiming J6 represents and how does Epps represent it? It's true that he used to be an Oath Keeper chapter president in 2011, why is that significant? It's true that he was on restricted Capitol Grounds, but so were up to 10,000 other people, so why is that significant? What exactly is the "exact profile" of people who were charged? Did you determine this profile by examining all 1,265 J6 defendants? Are you claiming that prosecutions are decided by looking for this profile? This is an extremely confusing paragraph.
You concede that Epps would not be presumed to be a leader of any kind and I just want to understand how you contrasted his situation to determine that he was treated unusually. I again repeat that a really good starting point would be for you to pick one comparable J6 defendant that you think was treated much more harshly than Epps.
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Is there video of Alex Jones telling people to enter the capitol? I thought there was opposite video evidence, of him saying "don't enter it's a trap".
Search engines are fucking useless these days. I can find hundreds of second hand descriptions from "reputable" news sources, but it's nearly impossible to find the first hand video evidence.
I remember Alex Jones in a video interview. Saying what I described in the first paragraph and then I remember looking it up and confirming it at the time with video evidence. But it's seemingly impossible to retrace steps.
I also saw a video of him driving around in his hummer shouting on a bullhorn for people not to enter, at the time -- search seems remarkably fucked indeed. (and/or youtube has been scrubbing this sort of thing -- probably the fastest way to find the video would be to go ask on /pol/, which is quite the state of affairs)
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I have no seen any evidence or video of Alex Jones explicitly telling people to enter the capitol. He was just the first person that came to mind who seemed more-or-less comparable to Epps along the "whip up crowd to head to the Capitol" axis.
This is the only video I could find, and only by adding "Joe Rogan" to my search terms which is apparently an alternate tag for "original video". In the video Alex Jones is telling people to avoid a confrontation with Police, and to march to the other side. He is a hundred or more feet away from the capitol building.
Mostly you can know that Alex Jones had zero involvement, because there is no footage of him having any involvement. If there was anything remotely implicating him it would have been blasted on every news channel. Your vague intuition of "Alex Jones would do something like this" is the exact same intuition as the people that put that intuition there in the first place. If they could have fed it, they would have.
Its also part of my continuing frustration with the state of the world. Common perception has diverged massively. You have the intuition that Alex Jones would do something. I have the intuition that Alex Jones would be set up and blamed for doing that thing while being totally innocent. The evidence for your intuition is easily findable in a bunch of second hand news sources that all vaguely hint in that direction, without ever saying enough to get hit with a slander lawsuit. The evidence for my intuition is buried and nearly impossible to find despite it being something I heard on the most listened to podcast series in the world.
I have no idea what you're referring to about my "intuition" that "Alex Jones would do something like this". Do what? Where are you getting this from?
Why did he come to mind, I'd call that intuition.
@ArjinFerman also
I don't want any ambiguity here, I never said or implied that Alex Jones "would do something like this" (I still don't know what is the 'something' you're referring to here), I never spoke of potential or possibilities about his conduct. The reason he came to mind is because I was trying to think of individuals comparable to Epps, and I first did so by deconstructing Epps's conduct into "He was on Capitol Grounds but did not enter, but encouraged others to enter". I figured finding someone who was caught on tape precisely asking people to enter was going to be a challenge, so I abstracted the latter factor into a more generalized "whipped up crowd to head towards the Capitol" to broaden the search. Alex Jones came to mind because he was there and I remembered him leading a "1776!" chant with a crowd. It's not going to be a perfect comparison, but I'm trying to do the work SlowBoy hasn't by proactively looking for individuals to compare Epps against, and I'm more than open to other suggestions.
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From your post in which you're using Alex Jones as an example of someone who behaved analogously to Epps.
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Two things can be true here. (1) that Eps committed crimes on J6 for which he deserves to be convicted and (2) he is unfairly the target of right wing conspiracy theories of being a federal agent. Eps can be a bad person in one sense and a victim in another. There is no contradiction here. In terms of how judges have treated other defendants, what other defendants have been the target of conspiracy theories like Eps?
Maybe I am the one who is confused but I'm pretty confident the DoJ does not have a mechanism to force someone to drop a civil suit. If Fox News did defame Eps by calling him a federal agent when he wasn't, why should the DoJ step in (to whatever extent it can) to stop him? Maybe Eps' actions are shameless if you assume he is a federal agent but from another angle he's another entity (like Dominion) defamed by Fox News and trying to protect his reputation.
Sure, but this is not how people emotionally reason. Epps committed what is, according to what the government claims in other cases, an attack on American democracy. How much sympathy do you have when bad things happen to bad people? Somehow, though, charity runs Epps' way.
I hope if I am accused of a crime, all the judges decide I was punished enough by the bad press, and in fact deserve the chance to sue for millions.
Can you please explain how you think the civil court system works? In your mind, do you believe that a judge presiding over a criminal matter can "allow" civil suits to proceed? I'm especially very intensely curious about what role you think the DOJ plays in "allowing" suits to proceed.
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I mean, I personally do not have much sympathy for Epps but I understand why other people do.
I do not understand this sentence. A judge in a criminal case cannot, as a general matter, decide a defendant cannot file a civil case against some third party. It is up to whatever judge is hearing the civil case to decide whether a case can go forward or not and a criminal conviction in some other case is not, for I think obvious reasons, generally disqualifying.
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Is there any legal basis for this at all? Would I be able to escape a criminal conviction by having a bunch of people on twitter talk about how I was a federal agent? If this is actually a criteria that's being used to adjust sentencing and shift legal outcomes, I've just come up with an incredibly profitable new business idea that will help get people out of sticky prosecutions even when there's direct video evidence of them committing the crime! Of course I don't actually believe that's the case - he's not being let off due to an actual legal principle. There are hundreds of conspiracy theories circulating about Donald Trump, and I highly doubt that he's going to be able to dodge the charges by using a similar precedent.
But Eps didn't escape a federal criminal conviction. He pleaded guilty to federal charges. My understanding is judges have a pretty wide latitude to consider a defendant's circumstances at sentencing, so nothing explicitly prevents a judge considering these factors.
My apologies for being unclear - please replace "criminal conviction" with "prison sentence".
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Not explicitly so and not unique to conspiracy theories, but judges and prosecutors do indeed factor into their decisions whether someone has "suffered enough already". The prime example I can think of are deciding whether to charge negligent parents whose child is killed as a result of being forgotten inside a hot car. I also had a client who avoided jail time on her third DUI, most likely because the collision she caused severely mangled her foot and left her in a wheelchair.
I can see the tenuous basis/linkage here, and I appreciate you providing an answer to my question. But, unfortunately, it isn't enough to change my mind on this matter - I can't understand how Ray Epps gets away with what he did on the basis of people saying mean things about him online when this same principle is not applied to anywhere near the same degree when it comes to others. Epstein and Ghislaine Maxwell were the target of far more online conspiracy theories than Ray Epps was, but that hasn't impacted their sentencing or prosecution in the slightest.
Well there's two questions here and it's important not to confuse them:
I've laid out my reasons for why Ray Epps does not appear to have been treated unusually when comparing his charges/sentences to other comparable J6 defendants. In terms of how much him being the victim of a conspiracy theory affected the outcome, it's hard to say because his ultimate sentence was well within the ballpark compared to other defendants. I do think it's plausible just based on the fact that this is indeed a factor in other cases, but his sentence was expected to be low anyways. You can read Epps' sentencing memo filed by his attorney for further details on how his life had been affected.
This is why a comparison to Epstein/Maxwell wouldn't make sense. The "suffered enough already" factor might sway judges/prosecutors at the margins, particularly for petty or questionable offenses, but I can't imagine a scenario where it would justify leniency for someone accused of running an underage sex trafficking ring.
Could you please show me where you actually did this? I gave the post I was responding to the and the links a few looks, but I couldn't find any where you went through the claims made in the Revolver piece in great detail.
Also, I'd just like to add as an aside that I don't think "being the victim of a conspiracy theory" is actually what is responsible for his lenient sentencing - rather, it was due to him being a federal informant or otherwise working for the government. I think that the conspiracy theory claim is being used as a figleaf for those other reasons. And finally...
Petty or questionable offences? Epstein was just running an underage sex trafficking ring, and the government didn't even think that was a big enough deal for him to go to prison the first time he did it. They haven't even gone after many of the confirmed customers of the sex ring - Ehud Barak is still a free man, as is Prince Andrew. In contrast, I've been repeatedly informed by "reliable sources" that what took place on January 6 was a violent insurrection that attempted to end our democracy, and is actually legally comparable to raising an army and literally waging war on the US government. The idea that people being mean on twitter could make up for that beggars belief.
I was addressing whether or not Epps was treated unusually as a defendant, and I examined that by comparing him to all other J6 defendants: "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) seemed unusual." What claim within the Revolver piece addresses whether or not Epps was treated unusually that I did not address?
Do you believe that the 37% of other convicted J6 defendants who also avoided jail time were also federal informants or otherwise working for the government?
Sure, that would beggar belief if it happened. I've seen no indication that's the case because plenty of other convicted J6 defendants avoided jail time despite not being the subject of a conspiracy theory. This is evidently not a material factor for sentencing purposes.
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The contradiction is not between committing crimes and being unfairly accused of being a Federal agent, the connection is between the left being uniquely willing to forgive his crimes and being a Federal agent. Arguments as soldiers is done by the left too. If the left thought he was a bad guy, the left would demand that he be overcharged and would completely ignore any false accusations made about him, because that's how they behave for everyone else.
That would require that the left and the DOJ care in general about people being defamed. They don't.
Who on the left is willing to forgive Eps' crimes? Certainly not me. Citation on how the left acts for "everyone else?"
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