The Ray Epps conspiracy theory — that he was an undercover FBI agent who ginned up the Jan. 6 Capitol attack — was fueled in part by the fact that he was at the Capitol that day but was never charged. However, according to Epps’ newly filed defamation lawsuit against Fox News, charges are coming.
That would obviously be an unwelcome development for Epps, but also for the dubious theory pushed by ex-Fox News host Tucker Carlson that prompted Epps’ suit. The plaintiff, a Donald Trump supporter from Arizona, claims in his filing that the Department of Justice told him in May that it planned to seek criminal charges against him, two and a half years after the Capitol attack.
In what would be quite a twist if true, Epps claims he's facing charges because of Fox News and Carlson, whom the network fired in April, days after it reached a nearly $800 million settlement in Dominion Voting Systems' defamation lawsuit.
“The relentless attacks by Fox and Mr. Carlson and the resulting political pressure likely resulted in the criminal charges,” according to Epps' defamation complaint filed in Delaware this week.
At any rate, Epps insists Jan. 6 charges would debunk the conspiracy theory for good.
“Although it is difficult to believe that the Department of Justice would have pursued this matter if Fox had not focused its lies on Epps, ultimately the criminal charges conclusively demonstrate the falsehood of the story that Mr. Carlson and Fox told about Epps,” according to the complaint signed by lawyer Brian Farnan, who also represented Dominion in its historic defamation case against Fox.
No doubt, being charged by the government would certainly pour colder water on the notion Epps was covertly working for it.
But even if impending charges debunk the conspiracy theory, they don’t prove defamation on their own. That’s because Epps still likely needs to show that at the time Fox broadcast the allegedly defamatory statements about him, it did so with knowledge that those statements were false or with reckless disregard for the truth.
According to his complaint, that’ll be done with “circumstantial evidence currently available to Epps in the public domain and will be further buttressed by evidence adduced in discovery.” So the full strength of the case will be determined during the litigation. (Fox News did not immediately respond to NBC News’ request for comment about Epps’ lawsuit. Carlson’s lawyer, Bryan Freedman, declined to comment.)
At the same time, Epps seems to say he can win based on what’s already obvious. Among other things, his complaint states:
Fox advanced an inherently improbable story — so inherently improbable that only a reckless broadcaster would advance it — namely that FBI agents or other federal law enforcement authorities working under the administration of Donald Trump would employ Epps as a provocateur to advance a federal government agenda to engage in an insurrection and commit violence at the Capitol.
Well, when you put it that way.
In any event, Epps isn’t Fox's only legal concern. My colleague Steve Benen reminded us recently:
Fox also agreed to a $12 million settlement with a former Fox producer named Abby Grossberg, which came against a backdrop of a separate lawsuit, filed by Smartmatic — another voting technology company — which is still pending. Like the Dominion case, Smartmatic is suing Fox for $2.7 billion stemming from the network’s coverage of the 2020 presidential election and its aftermath.
So, like Trump himself — whom Epps voted for — Fox has a busy and evolving legal docket stemming from 2020 election lies.
As for the Jan. 6 charges that Epps says he’ll face, they won’t win his defamation suit for him, but in the court of public opinion, they should further chip away at the already questionable conspiracy theory at the center of his suit.