The Case That Could Be Fox’s Next Dominion

Of all of the distortions and paranoia that Tucker Carlson promoted on his since-canceled Fox News program, one looms massive: a conspiracy principle that an Arizona man working as a covert authorities agent incited the Jan. 6, 2021, assault on the Capitol to sabotage and discredit former President Donald J. Trump and his political motion.

What’s recognized in regards to the man — a two-time Trump voter named Ray Epps — is that he took half in demonstrations in Washington that day and the evening earlier than. He was captured on digicam urging a crowd to march with him and enter the Capitol. But at different factors, he pleads for calm as soon as it turns into clear the state of affairs is popping violent. He may be seen transferring previous a line of Capitol Police on the barricades, however by no means truly goes contained in the Capitol.

Federal prosecutors haven’t charged Mr. Epps with against the law, focusing as a substitute on the greater than 1,000 different demonstrators who acted violently or have been trespassing within the Capitol. The Justice Department’s sprawling investigation into the assault stays open, nevertheless, and Mr. Epps might nonetheless be indicted.

Yet for greater than 18 months, Mr. Carlson insisted that the dearth of expenses in opposition to Mr. Epps might imply just one factor: that he was being protected as a result of he was a secret authorities agent. There was “no rational explanation,” Mr. Carlson informed his viewers, why this “mysterious figure” who “helped stage-manage the insurrection” had not been charged.

He repeated Mr. Epps’s identify again and again — in almost 20 episodes — imprinting it on the minds of his viewers.

Mr. Epps was within the Marine Corps however mentioned in his deposition earlier than the Jan. 6 committee that he had in any other case by no means labored on behalf of any authorities company. He and his spouse, Robyn, have fled Arizona and are in hiding in one other state, having offered their wedding ceremony venue enterprise and ranch after receiving loss of life threats from individuals who appeared to consider the conspiracy principle. And his authorized jeopardy is way from over on condition that prosecutors are nonetheless unsealing new circumstances in reference to Jan. 6.

Now legal professionals representing Mr. Epps and his spouse are continuing 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 Eppses’ rights,” mentioned Michael Teter, a lawyer for Mr. Epps who despatched the community a cease-and-desist letter asking for an on-air apology and a retraction. After Mr. Teter didn’t hear from Fox about his request, he started to organize the go well with. “That remains our intent.”

Mr. Epps declined to touch upon his potential go well with. A Fox News spokeswoman declined to remark.

Mr. Carlson additionally declined to remark. But he continues to push the false notion that the Jan. 6 assault was staged by anti-Trump components inside the federal government. On a podcast final week, Mr. Carlson claimed that the riot “was not an insurrection” and that the group that day was “filled with federal agents.”

First Amendment consultants say Mr. Epps has a viable case for defamation — one paying homage to the lawsuit the community lately settled with Dominion Voting Systems for $787.5 million, a case centered on quite a few examples of false statements made on Fox News packages over an prolonged interval.

If Mr. Epps strikes ahead, the case can be one other authorized complication and reputational stain for the conservative community, which faces a rising record of lawsuits associated to its airing of false claims in regards to the 2020 election and its aftermath. They embrace a $2.7 billion go well with from a second voting expertise firm, Smartmatic, and two separate claims by Fox Corporation shareholders. Another lawsuit from a former producer for Mr. Carlson, which Fox settled on June 30 for $12 million, alleged that he condoned and inspired a poisonous office.

A defamation go well with by Mr. Epps can be additional proof of how Mr. Carlson continues to pose a headache for Fox nicely after the community relieved him of his anchoring duties. Fox executives took him off the air after his textual content messages, which turned public as a part of the Dominion go well with, revealed he had expressed hateful and racist sentiments.

On the air, his conduct had begun to grate on senior Fox executives like Lachlan Murdoch, chief government of Fox Corporation, who disliked Mr. Carlson’s continued promotion of conspiracy theories about Jan. 6, which had drawn rebukes from Republicans together with Senator Mitch McConnell. On the day he was knowledgeable his present was canceled, Mr. Carlson had been planning to run one other phase on Mr. Epps, in accordance to a tweet from a licensed biographer of the host, Chadwick Moore.

By design, defamation legislation tilts closely within the news media’s favor, making it tough to be discovered responsible for defaming public figures — who are sometimes targets of media reporting — except there may be proof that the defendants both knew what they mentioned was false or acted with a reckless disregard for the reality. Mr. Epps would be capable of argue that Mr. Carlson repeatedly uttered statements about him from October 2021 to March 2023 that have been baseless, or simply defined or contradicted by the info reported in quite a few news stories.

“His challenge is to get a judge, if he files the suit, to say this was so inherently, bizarrely improbable that only a reckless person would put it into circulation,” mentioned Rodney Smolla, the president of Vermont Law School and a defamation professional who consulted for Dominion throughout its case in opposition to Fox News.

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

The assaults in opposition to Mr. Epps started circulating on-line after a video taken on the evening earlier than the Capitol assault. It reveals Mr. Epps at a pro-Trump demonstration on a Washington road shouting that he deliberate to march to the Capitol and enter. After pausing for a couple of seconds, he provides, “Peacefully.” Some within the crowd start chanting “Fed! Fed! Fed!” at him, implying he was a authorities agent making an attempt to goad Trump supporters into committing against the law.

Another video, taken on Jan. 6, additionally reveals Mr. Epps encouraging folks to march towards the Capitol. Then he bends all the way down to whisper in a person’s ear moments earlier than the person and rioters overcome cops and breach the safety perimeter across the Capitol grounds. It is tough to listen to what Mr. Epps says within the video.

Law enforcement instantly took notice of Mr. Epps’s suspicious conduct and put an image of him on an internet wished record. Mr. Epps has mentioned he referred to as the F.B.I.’s National Threat Operations Center shortly after the alert went up, and his cellphone information present he spoke to brokers there for almost an hour.

When the bureau eliminated him from the record — a couple of months after brokers formally interviewed him and his son within the spring of 2021 — Mr. Carlson and others claimed that Mr. Epps’s disappearance and the dearth of felony expenses meant that the federal government was defending him.

On his packages, Mr. Carlson claimed that Mr. Epps was a liar and demanded that he be arrested. In one phase that ran shortly earlier than Fox News canceled Mr. Carlson’s present in April, he confirmed viewers a picture of the FedEx brand that had been altered to say “FedEpps.”

The indisputable fact that Mr. Epps has not been charged is essentially in step with lots of, if not hundreds, of particular person selections that the Justice Department has made in its huge investigation of the Capitol assault.

Only a handful of people that pushed previous obstacles on the Capitol however by no means went contained in the constructing have confronted expenses, and no defendants have been charged with incitement. Incitement expenses in opposition to Mr. Epps can be notably laborious to show on condition that he in the end sought to de-escalate the group, and his most vocal encouragement to enter the constructing passed off on the evening earlier than the assault, making it virtually not possible to indicate his phrases had a direct impact.

What Mr. Epps whispered to that man on the day of the assault has been answered three separate instances: in an interview the F.B.I. carried out with the person Mr. Epps had talked to, Ryan Samsel; in Mr. Epps’s personal interview with the authorities; and in a podcast interview with a co-defendant in Mr. Samsel’s case. All three mentioned Mr. Epps had urged Mr. Samsel to settle down.

“He came up to me and he said, ‘Dude’ — his entire words were ‘Relax, the cops are doing their job,’” Mr. Samsel mentioned, in accordance with a recording of his interview with the F.B.I.

Mr. Carlson, in his authorized protection, might level to inconsistencies in Mr. Samsel’s account. He might additionally notice that Mr. Epps despatched a textual content to a member of the family, nicely after the riot ended, saying he helped “orchestrate” the actions of individuals towards the Capitol.

(In latest weeks, Mr. Samsel has abruptly modified his story. From jail, he has began calling reporters — largely for right-wing media retailers — to say that he lied to the F.B.I. and that Mr. Epps informed him to tug on the barricades. Mr. Samsel acknowledged to The New York Times, nevertheless, that he had not supplied this new story beneath oath to prosecutors.)

There are additionally unresolved authorized questions on whether or not Mr. Epps really suffered reputational hurt if the one folks he presumably misplaced esteem with are those that assume Jan. 6 was a righteous trigger.

“The question I would raise if I were Tucker Carlson’s lawyer,” mentioned David A. Logan, a former dean of Roger Williams School of Law, “is should Epps be able to 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 like a person who sues over false allegations that he’s homosexual or an anti-abortion activist who claims she was wrongly accused of getting an abortion.

Mr. Carlson might additionally depend on the ambiguous and oblique language he typically utilized in describing Mr. Epps. For occasion, he mentioned at varied factors that he couldn’t make certain if Mr. Epps was actually a double agent, acknowledging, “We don’t know anything about him.”

An indictment of Mr. Epps might additionally complicate his defamation case, by making any declare of reputational injury harder. “The centerpiece of a libel case is an alleged harm to reputation, so it for sure can become trickier to prove that you experienced a damages-incurring loss if your reputation is already poor because of true information,” mentioned RonNell Andersen Jones, a professor on the University of Utah S.J. Quinney College of Law. “But the questions are often complex.”

Only if a decide permits a case to proceed, Mr. Logan mentioned, will his legal professionals understand how sturdy their place is.

“Unlike Dominion, without Epps filing suit and getting broad discovery, we can’t be sure that Tucker Carlson had any doubts about the veracity of the allegations,” Mr. Logan mentioned. “Or that similar doubts went up the corporate chain.”