Of all the misrepresentations and paranoia that Tucker Carlson promoted on his since-cancelled Fox News show, one looms large: a conspiracy theory that an Arizona man working as a secret government agent instigated a January 6, 2021, attack on the Capitol to sabotage . and to 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 enter the Capitol. But at other points, he pleads for 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 never actually goes inside the Capitol.

Federal prosecutors did not charge Mr. Epps with a crime, focusing instead on the more than 1,000 other protesters who acted violently or entered the Capitol. The Justice Department’s extensive investigation into the attack remains open, however, and Mr. Epps could still be charged.

Yet for more than 18 months, Mr. Carlson insisted that the lack of charges against Mr. Epps could mean only one thing: that he was protected because he was an undercover government agent. There was “no reasonable explanation,” Mr. Carlson told his audience, why this “mysterious figure” who “helped stage manage the rebellion” was not charged.

He repeated Mr. Epps’ name over and over – in nearly 20 episodes – imprinting it on the minds of his viewers.

Mr. Epps was in the Marine Corps but said in his Jan. 6 deposition before the committee that he had never otherwise worked on behalf of any government agency. He and his wife, Robyn, fled Arizona and are hiding in another state, having sold their wedding venue business and ranch after receiving death threats from people who seemed to believe the conspiracy theory. And his legal jeopardy is far from over as prosecutors are still unsealing new cases related to Jan. 6.

Now lawyers representing Mr. Epps and his wife are moving ahead with plans to sue Fox News for defamation. “We informed Fox in March that if they did not issue a formal on-air apology that we would pursue all available avenues to protect the Epps’ rights,” said Michael Teter, a lawyer for Mr. Epps, who sent the network quit- a cease-and-desist letter requesting an on-air apology and retraction. After Mr. Teter did not hear from Fox about his request, he began preparing the suit. “That remains our intention.”

Mr. Epps declined to comment on his potential suit. A Fox News spokeswoman declined to comment.

Mr. Carlson also declined to comment. But he continues to push the false notion that the January 6 attack was staged by anti-Trump elements within the government. In a podcast last week, Mr. Carlson claimed that the riot “wasn’t a riot” 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 on Fox News programs. over an extended period.

If Mr. Epps moves forward, the case would be another legal complication and reputational stain for the conservative network, which faces a growing list of lawsuits related to its broadcast of false claims about the 2020 election and its aftermath. They include a $2.7 billion suit by a second voting technology company, Smartmatic, and two separate claims by Fox Corporation shareholders. Another lawsuit by a former producer for Mr. Carlson, which Fox settled on June 30 for $12 million, alleged that he tolerated and encouraged a toxic workplace.

A defamation suit by Mr. Epps would be further evidence of how Mr. Carlson continues to present a headache for Fox well after the network relieved him of his anchoring duties. Fox executives fired him after his text messages, which became public as part of the Dominion lawsuit, revealed he had expressed hateful and racist sentiments.

On air, his behavior began to rub off on senior Fox executives such as Lachlan Murdoch, chief executive of Fox Corporation, who resented Mr. Carlson’s continued promotion of conspiracy theories about Jan. 6, which drew rebukes from Republicans including Senator Mitch McConnell. On the day he was informed that his show had been canceled, Mr. Carlson planned to run another segment on Mr. Epps, according to to a tweet from an authorized biographer of the host, Chadwick Moore.

By design, defamation law tilts heavily in favor of the news media, making it difficult to be found liable for defamation of public figures—who are often targets of media reporting—unless there is proof that the defendants either knew what they said was false or acted with it. 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 unfounded, or easily explained or contradicted by the facts reported in numerous news reports.

“His challenge is to get a judge, if he brings the lawsuit, to say that this was so fundamentally, bizarrely improbable that only a reckless person would put it into circulation,” said Rodney Smolla, the president of Vermont Law School and a defamation expert. who consulted for Dominion during its case against Fox News.

“No case is easy,” added Mr. Smolla, “but this one is certainly, in my opinion, feasible.”

The attacks against Mr. Epps began circulating online after a video was made the night before the Capitol attack. It shows Mr. Epps at a pro-Trump demonstration on a Washington street shouting that he planned to march to the Capitol and enter. After a pause of a few seconds, he adds, “Peace.” Some in the crowd start chanting “Fed! Fed! Fed!” at him, implying that he was a government agent trying to incite Trump supporters to commit a crime.

Another video, made on January 6, also shows Mr. Epps urging people to march on the Capitol. Then he leans down to whisper in a man’s ear moments before the man and rioters overpower police officers and breach the security perimeter around the Capitol grounds. It is hard to hear what Mr. Epps is saying in the video.

Law enforcement immediately noticed Mr. Epps’ suspicious behavior and placed a picture of him on an online wanted list. Mr. Epps said he called the FBI’s National Threat Operations Center shortly after the alert went out, and his phone records show he spoke with agents there for nearly an hour.

When the bureau removed him from the list — a few months after agents formally interviewed him and his son in the spring of 2021 — Mr. Carlson and others argued that Mr. Epps’ disappearance and lack of criminal charges meant the government was protecting him .

In his programs, Mr. Carlson claimed that Mr. Epps was a liar and demanded that he be arrested. In one segment that ran shortly before Fox News canceled Mr. Carlson’s show in April, he showed viewers an image of the FedEx logo that had been changed to say “FedEpps.”

The fact that Mr. Epps has not been charged is largely consistent with hundreds, if not thousands, of individual decisions the Justice Department made in its sprawling investigation into the Capitol attack.

Only a handful of people who passed barriers at the Capitol but never went inside the building faced charges, and no defendants were charged with incitement. Incitement charges against Mr. Epps would be particularly difficult to prove because of this he finally sought to reduce the crowd, and his most vocal encouragement to enter the building occurred the night before the attack, making it nearly impossible to show that his words had an immediate effect.

What Mr. Epps whispered to that man on the day of the attack was answered three separate times: in an interview the FBI conducted with the man with whom Mr. Epps spoke, Ryan Samsel; in Mr. Epps’ own interview with the authorities; and in a podcast interview with a co-defendant in Mr. Samsel’s case. All three said Mr. Epps urged Mr. Samsel to calm down.

“He came up to me and he said, ‘Ami’ – all his words were ‘Relax, the cops are doing their job,'” Mr. Samsel said, according to a recording of his interview with the FBI.

Mr. Carlson, in his legal defense, could point to inconsistencies in Mr. Samsel’s account. He was also able to note that Mr. Epps had sent a text to a family member, well after the riot was over, saying that he had helped “orchestra” the movements of people to the Capitol.

(In recent weeks, Mr. Samsel abruptly changed his story. From prison, he began calling reporters — mostly for right-wing media — to say he had lied to the FBI and that Mr. Epps had told him to pull over to the barricades. Mr. Samsel acknowledged to The New York Times, however, that he did not provide this new story under oath to prosecutors.)

There are also unresolved legal questions about whether Mr. Epps really suffered reputational damage if the only people he allegedly lost respect with are those who think January 6 was a just cause.

“The question I would raise if I were Tucker Carlson’s lawyer,” said David A. Logan, former dean of the Roger Williams School of Law, “is whether Epps could claim defamation when the people who think less well of him are criminals. ?”

“Courts have struggled with this exact question,” he added, pointing to hypotheticals such as a man suing over false allegations 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 he sometimes used in describing Mr. Epps. For example, he said at various points that he couldn’t be sure if Mr. Epps was really a double agent, admitting, “We don’t know anything about him.”

An accusation by Mr. Epps could also complicate his defamation case, making any claim for reputational damage more difficult. “The centerpiece of defamation is alleged harm to reputation, so it can certainly become more difficult to prove that you have suffered a tortious loss if your reputation is already bad because of true information,” said RonNell Andersen Jones, a professor. at the University of Utah SJ Quinney College of Law. “But the questions are often complex.”

Only if a judge allows a case to proceed, Mr. Logan said, will his lawyers know how strong their position is.

“Unlike Dominion, without Epps filing a lawsuit and receiving wide exposure, we cannot be certain that Tucker Carlson had any doubts about the veracity of the allegations,” Mr. Logan said. “Or that similar doubts have moved up the corporate chain.”

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