The one ‘insurrectionist’ the federal government loves

Beyond a shadow of a doubt, one man called for protesters to storm the U.S. Capitol on January 6, 2021. That same man will not spend a day behind bars. If the federal prosecutors had wanted to prove that Ray Epps was a federal asset that day, they couldn’t have done a better job.

Epps first appeared on the government’s most-wanted list days after January 6, 2021, but was promptly and mysteriously removed. That led to speculation that Epps might have been a government agent. Dozens of videos surfaced over the past three years showing Epps involved in behavior that, under the January 6 rules, should have resulted in an armed pre-dawn raid, pretrial detention, multiple felony charges, and ultimately, years in federal prison.

If Ray Epps wasn’t working for the government that day, why is he the “insurrectionist” the government so stridently seeks to protect?

But strangely, Epps was never arrested. On September 5, nearly three years after the events of January 6, the Justice Department sent Epps’ attorney a letter offering a plea deal on a single misdemeanor.

Apparently, in conversations with the government that are not part of the public record, Epps accepted the deal, and with no fanfare, a case was initiated on September 18, 2023, and Epps accepted his plea deal four days later. Case closed.

Epps was scheduled to be sentenced in person on Tuesday. But the day before, the court announced the hearing would be conducted by conference call without providing any way for the public to participate.

The fact that the court allowed Epps to be sentenced by phone showed that the Justice Department and the judge were somehow on the same page and Epps would face no prison time. Otherwise, they would have wanted him present at the hearing. The government routinely argues that January 6 defendants should be taken into custody by the U.S. Marshals immediately after sentencing, and the judges often agree.

Epps instead received one year of probation on a misdemeanor charge — an inexplicable sentence considering he was the only man caught on video the day before the riot, when nobody could have imagined what would unfold, calling on protesters to storm the Capitol. Epps was never held pretrial, and the trivial charge he faced didn’t come for several years. Meanwhile, hundreds of nonviolent defendants with no criminal history have spent months in solitary confinement and eventually been sentenced to years in prison.

Double standards on display

The Justice Department’s sentencing memo for Epps gives away the game. This was not a mere act of grace and leniency by a federal judge. It was a collaborative effort — you might even call it collusion — between the Justice Department and the court.

If you read the Justice Department’s request for punishment in the various sentencing memos, you will find no expressions of grace even to the most sympathetic defendant. Yet just the opening lines of the Epps memorandum show how the government wasn’t merely seeking leniency for him but viewed him as a hero!

“This is a unique case in the context of January 6 defendants,” Assistant U.S. Attorney Michael Gordon wrote to the court. “Although Epps engaged in felonious conduct during the riot on January 6, his case includes a variety of distinctive and compelling mitigating factors, which led the government to exercise its prosecutorial discretion and offer Epps a pre-indictment misdemeanor plea resolution.”

In particular, the government noted how Epps turned himself in to the FBI on January 8, 2021, “immediately after becoming aware the FBI was seeking to identify him.” Moreover, Epps “cooperated with both the FBI and Congress, participating in multiple lengthy voluntary interviews.” And Epps “engaged in at least five efforts on January 6 to deescalate conflict and avoid violence between rioters and police officers.”

The sentencing memo also makes a point of highlighting “what appears to be” Epps’ “sincere remorse.”

Critically, Gordon’s sentencing memo goes out of its way to insist that Epps “has been the target of a false and widespread conspiracy theory that he was an undercover government agent on January 6.”

“Other than his four years in the Marines,” Gordon wrote, “Epps has never been a federal agent. He was not a federal agent or working at the direction of a federal agent on January 6; Epps only acted in furtherance of his own misguided belief in the ‘lie’ that the 2020 presidential election had been ‘stolen.’”

“However,” he added, “due to the outrage directed at Epps as a result of that false conspiracy theory, he has been forced to sell his business, move to a different state, and live reclusively.”

There you have it. Of course, the Justice Department could have made the same assessment of dozens of the most infamous January 6 defendants who were military veterans, had clean records, helped police that afternoon, called out people not to act violently, suffered financial, physical, and emotional destruction, and showed a tremendous amount of remorse. But no. Prosecutors and judges chose to show those others no leniency or mercy while lionizing Epps even before mentioning that he did anything wrong.

Epps and Ryan Samsel were at the front of the charge that first breached the police line at 12:54 p.m. If January 6 really was akin to the terrorist attacks of September 11, 2001, wouldn’t he be the last man to hold up as a hero or a victim? Yet the Justice Department touts his remorse and says his ruined reputation is punishment enough.

If only that were true of other January 6 defendants.

More sympathetic defendants got worse punishments

Richard Barnett did not act violently that day. He was photographed in Nancy Pelosi’s office, sitting in her chair smiling with his feet on her desk. The Arkansas man was in the building for less than 10 minutes. For that, was charged with four felonies and four misdemeanors, including one carrying a year in prison, for stealing an envelope. He was held in pretrial detention for four months and was almost killed in jail. Barnett was found guilty on all charges and sentenced to four and a half years in prison.

As it happens, Michael Gordon also wrote the sentencing memo for Barnett, who presented a very different case for the government. Gordon requested 87 months for Barrnett, which, in his estimation, “reflects the gravity of Barnett’s conduct and the need to deter Barnett and others from obstructing the democratic process and dangerously interfering with the police in pursuit of their political beliefs in the future.” Maybe his real crime was being excessively jovial with his trespass.

Other January 6 defendants cut more sympathetic figures than Epps, assuming he really is not a federal agent.

Vicky White of Minnesota was caught on video tackling a large man swinging a bat at the Capitol building near the western tunnel. She risked her life to stop the violence. Yet Capitol police dragged her into the building and Officer Jason Bagshaw savagely beat her on the head with a baton and his bare fists. She was harassed by the FBI for three years and eventually sentenced to 10 days. They completely ruined her.

Couy Griffin, a former New Mexico county commissioner, spent three weeks in solitary confinement for misdemeanor trespassing.

Sara Carpenter, a retired police officer from New York, was a first responder at the World Trade Center on 9/11 and suffers from post-traumatic stress disorder. She was in the rotunda and yelled at police officers and swatted away the hands of an officer when he tried to push her. That’s all she did. She was charged with multiple felonies and sentenced to 22 months in prison. She is scheduled to surrender in February.

The Justice Department made a big deal about Epps’ service as a Marine. With Carpenter, not only did prosecutors ignore her background, but they also filed a motion to prevent her from presenting any “good character” evidence to the jury.

More prosecutions to come

Ray Epps’s lenient sentence was all the more jarring coming just days after Matthew Graves, the U.S. attorney for the District of Columbia in charge of the January 6 prosecutions, announced that his office would begin targeting people who never entered the Capitol.

Three years after the events of January 6, at a time when the vast majority of Americans are more concerned about the anemic economy and the flood of illegal aliens at the border, this prosecutor is intent on hounding people who did nothing wrong at a permitted protest. Yet one of the most visible “insurrectionists” from that day gets no prison time. Strange.

As prosecutor Gordon wrote in the sentencing memorandum, Epps should have known he was leading in the wrong direction:

Epps explained his own presence at the forefront of the rioters who broke through the initial barricades with the unapologetic statement, “Marines are always in the front, not in the back.” ... Despite his own time in service to the nation, Epps fails to recognize that this aphorism refers to Marines acting as the tip of the spear for the government, not against it.

So if the man at the tip of the spear against the government remains free, why would Graves embark on a campaign against thousands of people who never entered the Capitol but merely protested on the lawn outside?

Based on 99.9% of January 6 cases over the last three years, those other people merely standing outside the Capitol will not get the “Ray Epps treatment.” They’ll be looking at significant prison time. And so the mystery remains: If Ray Epps wasn’t working for the government that day, why is he the “insurrectionist” the government so stridently seeks to protect?