Of all the distortions and paranoia Tucker Carlson promoted on his since-canceled Fox News show, one looms large: a conspiracy theory that an Arizona man working as an undercover government agent incited the Jan. 6 storming of the Capitol. of 2021 to sabotage and discredit former President Donald J. Trump and his political movement.
What is known about the man, a two-time Trump voter named Ray Epps, is that he participated in demonstrations in Washington that day and the night before. He was caught on camera urging a crowd to march with him and into the Capitol. But at other points, he advocates calm once it becomes clear that the situation is turning violent. He can be seen moving past a line of Capitol Police at the barricades, but he never actually enters the Capitol.
Federal prosecutors have not charged Mr. Epps with any crimes, instead focusing on the more than 1,000 protesters who acted violently or invaded the Capitol. However, the Justice Department’s extensive investigation into the attack remains open and Epps could still be charged.
Yet for more than 18 months, Mr. Carlson insisted that the lack of charges against Mr. 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 Mr. Epps’s name over and over again, in nearly 20 episodes, imprinting it on the minds of his viewers.
Mr. Epps was in the Marine Corps, but said in his January 6 statement before the committee that he had never worked on behalf of any government agency. He and his wife, Robyn, have fled Arizona and are in hiding in another state, having sold their wedding business and his ranch after receiving death threats from people who seemed to believe the conspiracy theory. . And his legal peril is far from over as prosecutors are still opening new cases in connection with Jan. 6.
Now, lawyers representing Mr. Epps and his wife are proceeding with plans to sue Fox News for defamation. “We informed Fox in March that if they did not issue a formal apology on the air, we would pursue all available avenues to protect the rights of the Epps,” said Michael Teter, an attorney for Epps, who sent the network a halt. and letter of withdrawal requesting an on-air apology and a retraction. After Mr. Teter did not hear from Fox about his request, he began preparing the lawsuit. “That remains our intention.”
Mr. Epps declined to comment on his potential lawsuit. A Fox News spokeswoman declined to comment.
Mr. Carlson also declined to comment. But he continues to push the false idea that the January 6 attack was organized by anti-Trump elements within the government. In a podcast last week, Carlson claimed that the riot was “not an insurrection” and that the crowd that day was “full of federal agents.”
First Amendment experts say Mr. Epps has a viable case for defamation, one reminiscent of the lawsuit the network recently settled with Dominion Voting Systems for $787.5 million, a case centered on numerous examples of false statements made in Fox News shows for an extended period.
If Epps goes forward, the case would be another legal complication and a tarnish on the conservative network, which is facing a growing list of lawsuits related to making 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 Corporation shareholders. Another lawsuit by a former Carlson producer, which Fox settled June 30 for $12 million, alleged that he condoned and encouraged a toxic workplace.
A defamation suit filed by Mr. Epps would be further evidence of how Mr. Carlson remains a pain in the ass for Fox long after the network relieved him of his hosting duties. Fox executives took him off the air after text messages from him, made public as part of Dominion’s lawsuit, revealed that he had expressed hateful and racist sentiments.
On air, his behavior had begun to annoy senior Fox executives such as Lachlan Murdoch, CEO of Fox Corporation, who disliked Carlson’s continued promotion of conspiracy theories about January 6, which had sparked rebukes from Republicans, including Sen. Mitch McConnell. On the day he was informed that his show had been cancelled, Mr. Carlson had planned to run another segment on Mr. Epps, according to a tweet from an authorized biographer of the host, Chadwick Moore.
By design, defamation law is skewed heavily in favor of the media, making it difficult for them to be found liable for defaming public figures, who are often the target of media reports, unless there is proof. that the defendants either knew what they were saying was false or acted with reckless disregard for the truth. Mr. Epps could argue that Mr. Carlson repeatedly made statements about him from October 2021 to March 2023 that were unsubstantiated, or easily explained or contradicted by facts reported in numerous news reports.
“His challenge is to get a judge, if he sues, to say that this was so inherently and bizarrely improbable that only a reckless person would put it into circulation,” said Rodney Smolla, president of the Vermont Law School and defamation expert. . who consulted with Dominion during his case against Fox News.
“No case is easy,” Smolla added, “but this one is certainly, in my opinion, viable.”
Attacks on Mr. Epps began circulating online after a video taken the night before the attack on the Capitol. It shows Epps at a pro-Trump rally on a Washington street yelling that he planned to march on the Capitol and go inside. After a pause of a few seconds, he adds: “Peacefully.” Some in the crowd start chanting “Fed! fed! Fed!” to him, implying that he was a government agent trying to incite Trump supporters to commit a crime.
Another video, taken on January 6, also shows Mr. Epps encouraging people to march on the Capitol. He then leans in to whisper in a man’s ear moments before the man and the rioters outmaneuver the police officers and breach the security perimeter around the Capitol grounds. It’s hard to hear what Mr. Epps is saying in the video.
Police immediately took note of Mr. Epps’s suspicious behavior and put a picture of him on an online wanted list. Mr. Epps has said that he called the FBI’s National Threat Operations Center shortly after he raised the alert, and his phone records show that he spoke with agents there for nearly an hour.
When the bureau delisted him, a few months after agents formally interviewed him and his son in the spring of 2021, Mr. Carlson and others claimed Mr. Epps’ disappearance and lack of criminal charges they meant the government was protecting him. .
On his shows, Mr. Carlson claimed that Mr. Epps was a liar and demanded that he be arrested. In a segment that aired shortly before Mr. Carlson’s show was canceled by Fox News in April, he showed viewers an image of the FedEx logo that had been altered to read “FedEpps.”
The fact that Mr. Epps has not been charged is in large part in keeping with hundreds, if not thousands, of individual decisions the Department of Justice has made in its vast investigation of the attack on the Capitol.
Only a handful of people who pushed through the barriers at the Capitol but never entered the building have faced charges, and no defendants have been charged with incitement. The incitement charges against Mr. Epps would be particularly difficult to prove given that ultimately tried to de-escalate the crowd, and his greatest encouragement to enter the building came the night before the attack, making it almost impossible to prove that his words had an immediate effect.
What Mr. Epps whispered to that man on the day of the attack has been answered on three separate occasions: in an interview the FBI conducted with the man Mr. Epps had spoken to, ryan samsell; in Mr. Epps’s own interview with the authorities; and in a podcast interview with a co-defendant in the Mr. Samsel case. All three said Epps had urged Samsel to calm down.
“He approached me and said: ‘Friend’; all his words were: ‘Relax, the police are doing their job,’” Samsel said, according to a recording of his interview with the FBI.
Mr. Carlson, in his legal defense, could point out inconsistencies in Mr. Samsel’s account. He was also able to note that Mr. Epps sent a text message to a family member, long after the riots had ended, saying that he helped “orchestrate” movements of people into the Capitol.
(In recent weeks, Mr. Samsel abruptly changed his story. From jail, he began calling reporters, mostly right-wing media outlets, to say that he lied to the FBI and that Mr. Epps told him to pull the However, Mr. Samsel acknowledged to The New York Times that he had not provided this new story under oath to prosecutors).
There are also unresolved legal questions about whether Epps really suffered reputational damage if the only people with whom he presumably lost esteem are those who think Jan. 6 was just cause.
“The question I would raise if I were Tucker Carlson’s attorney,” said David A. Logan, former dean of Roger Williams Law School, “is whether Epps could claim defamation when people who think least of him are criminals. ?”
“The courts have had trouble with this exact question,” she added, pointing to hypothetical cases such as a man suing over false accusations that he is gay or an anti-abortion activist who claims she was wrongly accused of having an abortion.
Mr. Carlson could also rely on the ambiguous and indirect language that he sometimes used to describe Mr. Epps. For example, he said at various points that he couldn’t be sure if Mr. Epps was really a double agent, acknowledging: “We don’t know anything about him.”
An indictment against Mr. Epps could also complicate his defamation case, by making any claim of reputational damage more difficult. “The centerpiece of a defamation case is alleged reputational damage, so it can surely become more difficult to prove that you suffered a damages loss if your reputation is already bad because of the true information,” said RonNell Andersen Jones, professor. at the University of Utah SJ Quinney School of Law. “But the questions are often complex.”
Only if a judge allows a case to go forward, Logan said, will his lawyers know how strong his position is.
“Unlike Dominion, without Epps filing a lawsuit and obtaining extensive discovery, we cannot be sure that Tucker Carlson had doubts about the veracity of the allegations,” Logan said. “Or that similar doubts went up the corporate chain.”