The Fox News opinion host whose legal defense has been that viewers shouldn’t believe what he says is literally true has now tried to suggest that “unindicted co-conspirators” cited in connection with the Jan. 6th siege on the U.S. Capitol Complex may have been undercover government actors. Tucker Carlson insinuated that the government was to blame for what happened at the Capitol by citing to a website which failed to cite or analyze the law or common legal practices while claiming a government conspiracy surrounded what occurred on Jan. 6th.
The Broadcast
In a Tuesday evening monologue, Carlson ranted about “Person 2” — a man alleged to have “stormed the barricades” around the Capitol and stayed in a hotel room with indicted Oath Keepers member Thomas Caldwell — and “Person 3,” another unidentified and uncharged co-conspirator.
“In potentially every single case, they were FBI operatives,” Carlson suggested. “Really? In the Capitol on Jan. 6th!”
“They were almost certainly working for the FBI,” Carlson also said of these “persons.”
He then called the unnamed individuals the “organizers” of what took place.
“So, FBI operatives were organizing the attack on the capitol on January 6th, according to government documents,” he exclaimed. “So, it turns out this white supremacist insurrection was — again, by the government’s own admission in these documents — organized at least in part by government agents!”
Embattled congressman Matt Gaetz (R-Fla.) and controversial congresswoman Marjorie Taylor Greene (R-Ga.) quickly amplified Carlson’s speculation on Twitter, using it to call for an investigation.
Much of the Carlson monologue was sourced to Revolver News, a website Forbes has described as a “right-wing” aggregator of content. Last summer, the site advocated the shooting of racial justice protesters. It has been heavily promoted by Donald Trump and members of his administration.
The underlying Revolver story claimed that a “curious lack of indictments” against unindicted co-conspirators referenced in various capitol siege cases — including individuals known as “Person 2, Person 3, Person 10, Person 14, Person 15, Person 16, Person 19 and Person 20, along with many co-conspirators” — raised troubling “red flags.” The Revolver story also suggested, as did Carlson, that the unnamed and unindicted individuals were undercover government agents.
The Revolver article used the word “entrapment” a sum total of four times to describe the alleged actions of these alleged government agents. That’s a legally operative word we’ll discuss further in a moment.
A Revolver representative, Darren Beattie, appeared on Carlson’s broadcast to agree that the “remarkable” report “certainly suggests” the “possibility” that the FBI “organized the riots.” Beattie claimed that the piece is “the most important and the darkest investigative piece” many people have seen “in years.” Beattie said people deserved to know the truth about what occurred on Jan. 6th for the sake of Ashli Babbitt and others. Babbitt was shot and killed by a law enforcement officer as she attempted to enter the Speaker’s Lobby during the siege.
Beattie claimed the “key that unlocks the truth to 1/6” is the question of whether the key militia groups were infiltrated and led by the FBI and other government agencies — in other words, spurred to do what they did by the government and then branded as domestic terrorists.
As an aside, the New York Times reported last November that Beattie was fired from the Trump White House as a speechwriter in 2018 for attending “a gathering with white nationalists.” He later was placed on a commission which aims to preserve sites related to the Holocaust — a move which was opposed by the Anti-Defamation League.
Both Carlson and Beattie admitted that additional information was necessary to fully answer the question. Gaetz agreed by midday on Wednesday and demanded to know whether FBI agents were “active instigators.”
Let’s discuss these claims.
Conspiracy?
The Carlson/Beattie claim that government agents are unindicted co-conspirators makes very little logical sense as a matter of law. It is well-settled law — at least in the Eleventh Circuit — that “government agents and informers cannot be conspirators.” And other legal experts agree. So, when Beattie and Carlson suggest that FBI agents might be unindicted co-conspirators involved in the Capitol breach, they are suggesting something that is literally not even a thing. It’s like a liquid solid, or a working flux capacitor, or an underground sky, or a Declaration of Independence from 1775 — a figment of the imagination.
However, “a defendant may be convicted of conspiring with persons whose names are unknown or who have not been tried and acquitted, if the indictment asserts that such other persons exist, and the evidence supports their existence and the existence of a conspiracy.” So, it is possible for a Jan. 6th defendant to be charged for conspiring with someone who the government cannot identify.
Standard Practice — Who Is Who?
It is not common for federal court documents to refer to undercover agents or criminal informants merely as “persons.” Under common DOJ parlance, Informants are referred to as “Confidential Human Sources” (“CHS”), and agents are referred to as “Undercover Employees” (“UCE“), as the Revolver story itself points out.
Additionally, the Justice Department’s manual for U.S. Attorneys says “prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments.” The manual, citing case law, suggests only “generic reference” to such individuals.
The 1975 case upon which the Justice Manual’s prohibition is based warns of “harm to the citizen who is accused but not indicted.” It suggests “private injury” may “stigmatiz[e] private citizens as criminals while not naming them as defendants or affording [them] access to any forum for vindication.”
“[W]e know of no reason why, if the indictment wishes to center upon a specific person but not name him as defendant, he cannot be described as ‘John Doe,'” the court said. “An unindicted conspirator anonymously designated as an ‘other person’ or as ‘John Doe’ may be unmasked in a bill of particulars or at trial.”
The procedure followed generally by the Capitol siege cases follows these patterns and practices.
The Identities
The identity of at least one of the “persons” referenced in Capitol siege cases is known. For instance, “Person One” is Oath Keepers founder Stewart Rhodes, the Washington Post has reported.
“The Oath Keepers are led by Person One,” federal court documents also explain.
According to those documents:
On January 4, 2021, Person One posted an article to the Oath Keepers website encouraging Oath Keeper members and affiliates to go to Washington, D.C., for the events of January 5-6, 2021, stating: “It is CRITICAL that all patriots who can be in DC get to DC to stand tall in support of President Trump’s fight to defeat the enemies foreign and domestic who are attempting a coup, through the massive vote fraud and related attacks on our Republic. We Oath Keepers are both honor-bound and eager to be there in strength to do our part.”
Rhodes has military experience and is a graduate of Yale Law School, the Southern Poverty Law Center says. BuzzFeed reported that he stayed outside the Capitol on Jan. 6th. The Montana Supreme Court disbarred Rhodes in 2015. He has not been charged with a crime in connection with the Capitol siege.
Indeed, links between the various Jan. 6th defendants, the military, and the government have been long acknowledged. Thomas Caldwell, a named member of the alleged Oath Keepers conspiracy, is a retired lieutenant in the military who later worked for the FBI, court documents have revealed. The entire mission of the Oath Keepers, after all, is to recruit former police, military, and first responders into the organization’s ranks. Finding individuals with FBI connections within the group’s roster should not be a surprise.
But even if active, loyal FBI agents infiltrated the group, the person at the top, who is not by any account an FBI employee, was alleged to have been calling the shots.
And federal prosecutors remain in the process of filing charges and bringing superseding indictments. There has been a clear pattern of targeting, then eventually identifying and naming individuals for prosecution in the Jan. 6th Capitol breach cases
It’s Likely Not Entrapment
While we await the identities of the various “persons” referenced by Carlson and the Revolver, it’s important to acknowledge that the underlying law of entrapment does not suggest the type of legal bombshell contemplated by Beattie or Carlson.
And that’s important. Even if Beattie and Carlson are completely correct — and that’s unlikely — it likely won’t matter much legally.
The Revolver story started to insinuate an entrapment defense for those charged:
If it turns out that an extraordinary percentage of the members of these groups involved in planning and executing the Capitol Siege were federal informants or undercover operatives, the implications would be nothing short of staggering. This would be far worse than the already bad situation of the government knowing about the possibility of violence and doing nothing. Instead, this would imply that elements of the federal government were active instigators in the most egregious and spectacular aspects of 1/6, amounting to a monumental entrapment scheme used as a pretext to imprison otherwise harmless protestors at the Capitol — and in a much larger sense used to frame the entire MAGA movement as potential domestic terrorists.[ . . . ]Indeed, if the federal government knew of a potential for violence in or around the Capitol on 1/6 and failed to call for heightened security, the agencies responsible may in fact be legally liable for the damages incurred during that day.
The Revolver story went on to attempt to compare the acknowledged use of undercover agents in cases involving a plot to kidnap Democratic Michigan Gov. Gretchen Whitmer and the cases involving the Jan. 6th siege at the U.S. Capitol Complex.
“The possibility of an FBI entrapment-type operation is especially disturbing in light of the striking parallels between the Michigan Plot and the so-called Capitol Siege of 1/6,” the Revolver story said.
The problem is that the story logically leaps to — or suggests — the legal conclusion that the use of undercover informants is a bad thing. The Revolver cites no laws, so the piece asks its readers to agree that “a potentially extraordinary scandal” is afoot without any authoritative argument as to whether the alleged underlying conduct — even if it is true — is illegal.
Generally speaking, entrapment defenses focus on what the U.S. Supreme Court and other courts have called “predisposition” — that is, whether the defendant was “ready and willing without persuasion” to commit a crime and was “awaiting any propitious opportunity to commit the offense.” Though there is some disagreement in the case law about the precise parameters of law of entrapment, the legal test employed generally measures a defendant’s propensities and inclinations regardless of an undercover agent’s involvement. If a defendant is already on track to commit a crime and an undercover agent merely greases the rails and helps make the crime happen, entrapment does not occur, and the defendant is usually caught red-handed by a government agent witness who is more than willing to testify about the particulars. The legal theory at play here is that the defendant would have simply engaged the assistance of someone other than the undercover government agent and committed the crime anyway.
A successful entrapment defense generally shows the defendant’s “unreadiness” to commit the crime. An “unready” defendant is one who is badgered or pushed by the government into committing an illegal act after refusing or expressing clear doubts and misgivings about so doing.
As one U.S. Court of Appeals for the D.C. Circuit Court case explains:
Inducement by law enforcement officials may take many forms including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. A solicitation, request or approach by law enforcement officials to engage in criminal activity, standing alone, is not an inducement.
Based on what we know right now about the Capitol siege cases, few if any unready or reluctant defendants have been identified. Most seemed ebullient about the thought of disrupting the proceedings to install Joe Biden as president.
Then there’s another related legal doctrine called “entrapment by estoppel.” That’s when an individual asks a government official whether or not a certain activity is legal, is given bad advice, and henceforth relies on that advice to commit an illegal act — all while thinking the act was legal based on the government agent’s advice.
An unpublished but often cited 2008 case from the Eastern District of Pennsylvania explains the law:
A defendant who raises this defense must prove by a preponderance of the evidence that: “(1) a government official (2) told the defendant that certain criminal conduct was legal, (3) the defendant actually relied on the government official’s statements, (4) and the defendant’s reliance was in good faith and reasonable in light of the identity of the government official, the point of law represented, and the substance of the official’s statement.” United States v. Stewart, 185 F.3d 112, 124 (3d Cir. 1999) (quoting United States v. West Indies Transp., Inc., 127 F.3d 299, 313 (3d Cir. 1997)).
It’s unlikely that an undercover agent who infiltrated a militia group would have admitted his or her status as an active government agent for the purposes of giving advice to others in the group on the legalities of their actions. Therefore, it’s unlikely this particular type of entrapment defense would apply to the known Capitol siege cases.
In an email to Law&Crime, the FBI said it “received the congressional letter” from Rep. Gaetz but had “no additional comment.”
A spokesperson for the U.S. Department of Justice did not return a phone call seeking reaction or comment.
[Editor’s note: this piece has been updated to include citations to the Justice Manual and to add reaction from the FBI.]
[image via Fox News Channel]