Influential conservative voices have promoted an unsubstantiated theory based on a misinterpretation of the legal terminology that the FBI organized the Siege of the Capitol on January 6th.
Fox News host Tucker Carlson, citing the work of far-right website Revolver News, speculated about the government’s involvement in his show on Tuesday. Clips of Mr. Carlson’s argument are rife on social media this week, garnering millions of views and sharing by Republican Congressmen such as Florida Rep Matt Gaetz and Georgia Rep Marjorie Taylor Greene.
“Oddly enough, some of the people who took part in the riot were not charged,” Carlson said. “Look at the documents. The government calls these people “unindicted co-conspirators”. What does that mean? That means that it is potentially FBI agents in every case. “
The Justice Department did not respond to a request for comment. However, legal experts found these speculations illogical and far-fetched. Conspiracy is defined as an agreement between two or more people to commit a crime. An undercover federal agent or informant cannot be counted as a conspirator because those agents have no real intent to commit the crime, explains the Congressional Research Service – the non-partisan research agency of Congress.
Jesse Norris, a professor of criminal justice at the State University of New York at Fredonia who spent several years investigating cases of capture in the prosecution of terrorism, said he had never come across a case involving an FBI informant was referred to as an “unindicted co-conspirator”. “
“Legally, it would not make sense to call informants co-conspirators,” he said. “If they were authorized by the FBI to participate in the conspiracy, they really wouldn’t be conspirators because they had no intention of committing a crime. Instead, they pretended to commit a crime on behalf of the government to catch real criminals. “
Ira P. Robbins, a law professor at American University who has written about unindicted co-conspirators, said there would be no point calling an informant a co-conspirator unless an FBI agent broke away.
“Even if that were true, to say that there is one case, that is, each case – where is the evidence?” He said. “Where are the facts?”
There are several reasons why the government calls someone an “unindicted co-conspirator”. The co-conspirator may have worked with law enforcement and received a deal, or there may not be enough evidence to bring charges against the person.
Indeed, it is the Justice Department’s policy not to appoint unindicted co-conspirators “without substantive justification”. (Former President Richard Nixon was named an unindicted co-conspirator by a grand jury in the Watergate case, while former President Donald J. Trump was named one in a campaign finance violation case.)
Mr Carlson pointed to the indictment filed by Thomas Edward Caldwell, a 65-year-old Virginia resident, who has been described in indictments as the obvious leader of the far-right Oath Keepers group. Mr. Carlson alleged that unnamed persons mentioned in his indictment “almost certainly worked for the FBI.”
The indictment mentions several unnamed people. One of them – “Person 1” – is described in the indictment as the leader of the Oath Keepers, widely known as Stewart Rhodes. But there is no evidence that Mr. Rhodes is an FBI informant.
The loading documents describe “Person 2” taking selfies with Mr. Caldwell at the Capitol. As reported by the Washington Post, this person may be referring to Mr. Caldwell’s wife. Mr. Caldwell posted a photo of himself and his wife at the Capitol on Jan. 6.
Mr Carlson also noted that FBI agents were involved in a conspiracy to kidnap Michigan Governor Gretchen Whitmer last year. This is true. But the agents are not listed as “unindicted co-conspirators”. Rather, the criminal complaint refers to “confidential personnel sources” and “undercover employees”.
Similarly, in the Capitol riot cases, FBI informants were described as “confidential source”, “confidential human source” or simply “informant” while agents were described as “undercover”.
And Mr Carlson, citing potential pitfalls in the prosecution of terrorism documented in the book “The Terror Factory” by journalist Trevor Aaronson, added, “We see now.”
This, too, is unlikely, said experts. In a recent study, Dr. Norris notes that “right-wing cases have significantly fewer inclusion indicators” than those that are left-wing or jihadist terrorism cases.
“Not all covert operations involve arrests; probably most of them don’t, ”said Dr. Norris.
Professor Robbins said if FBI agents were heavily involved in planning the attack it would be considered imprisonment. But he said he was unaware that participants in the Capitol riot had been captured for defensive purposes.
“Tucker Carlson takes a huge leap of faith here when he says FBI agents were involved, so they were agents, so they organized it,” he said. “There’s just no evidence of that.”