A Tucker Carlson monologue misconstrues the facts of the case.
A Tucker Carlson monologue misconstrues the facts of the case.
I finally watched Tucker Carlson’s monologue from Tuesday night, which has understandably caused a stir.
Tucker speculates that the January 6 Capitol tumult was more likely an FBI fabrication than a riot instigated by the Oath Keepers militia group and other Trump supporters. His theory relies heavily on a Revolver news report that is long on conspiracy theory and short on evidence. It is a shark-jump from Carlson’s run-of-the-mill populist fare: the notion that the government so routinely entraps essentially law-abiding people that high-profile crimes are as likely to be FBI inventions as real offenses.
There’s not a defense lawyer in America who hasn’t tried that one at some point. And when it gets down to brass tacks, it is obvious that Carlson himself realizes the argument is flawed: He concedes that “using an informant to find out what a group you find threatening might do” makes sense in some situations. Well, yes . . . and, common sense says that, unless the informant convinces the actual bad guys that he is one of them and a willing participant in their malevolent schemes, he will not be able to infiltrate their group, which means the police won’t find out what they are up to until they strike. Consequently, in any case where using a covert government operative is appropriate, there will always be room to debate how far the operative should go.
Carlson doesn’t grapple with that tough question — which the law solves, for better or worse, by rejecting entrapment claims unless (1) a government agent has truly instigated the crime (it’s not enough to show that a government operative helped matters along if the defendant proposed the scheme) and (2) the defendant was not predisposed to commit the crime (i.e., he truly was enticed into lawlessness by the government operative).
At this point, there is scant reason to believe that the Capitol riot presents an entrapment scenario. Yet Carlson maintains that, on January 6, the FBI may well have been “paying people to help organize a violent action.” He insists, moreover, that the government’s own charging documents expressly support this claim.
They don’t do that at all. Tucker is a very smart guy, so somewhere along the line, he has to be misconstruing what he’s reading. I think I’ve found the somewhere.
The point of confusion is rudimentary: Carlson thinks an unindicted co-conspirator (UCC) is the same thing as an FBI confidential informant (CI). In reality, they are saliently different. At times in his remarks, Carlson conveyed a grasp of what a CI does and how that differs from willful participation in a crime. I have to assume, then, that what he misunderstands is the nature of conspiracy and the various reasons why some members of the conspiracy (the UCCs) do not appear in an indictment in which their confederates are charged. Carlson is also plainly unfamiliar with the prosecution’s discovery obligations in a criminal case, particularly conspiracy cases that feature UCCs and CIs.
Unindicted Co-conspirators
The Oath Keepers are said to be a loosely knit right-wing militia organization that makes a point of recruiting military veterans and cops. Homing in on the Oath Keepers indictment, Carlson notes that some of the defendants — he expressly refers to Thomas Caldwell — are alleged to have met other Oath Keepers figures who are identified as Persons One, Two, Three, and Ten in the indictment (we’re left in the dark regarding Persons Four through Nine). Carlson assumes that these numbered, unnamed persons are UCCs — a reasonable assumption, though the matter is not as clear-cut as he suggests. But he then leaps to the unsupported and almost certainly incorrect conclusion that these unnamed UCCs must have been FBI informants. From there, he moves even further into dark fantasy: that these supposed FBI informants were the main drivers of the January 6 conspiracy, such that the riot may have been orchestrated by the government.
To untangle this, we need to cover some basics.
An unindicted co-conspirator is an alleged member of a conspiracy who has not been charged in a particular conspiracy indictment. That does not necessarily mean the UCC has not been charged at all. It may be that the UCC — especially if he has pled guilty and agreed to cooperate with the government — has been charged in a separate case. It so happens that we have a useful example of this. As I recounted in last weekend’s column (and as Rich Lowry and I discussed on The McCarthy Report podcast), in April a “lifetime founding member” of the Oath Keepers, Jon Schaffer, pled guilty and agreed to cooperate with prosecutors.
Although Schaffer is plainly a member of the Oath Keepers conspiracy, the Biden Justice Department did not have him plead guilty to the conspiracy charge in the Oath Keepers indictment. That’s undoubtedly because, for the purposes of helping Democrats hype a white-supremacist terrorism narrative, the conspiracy charge is too minor. Although that charge has been portrayed by the media and the Justice Department as if it were a terrorism allegation, it actually involves a statute that criminalizes comparatively minor conspiracy offenses, fit for a maximum penalty of just five years’ imprisonment (with the possibility of no jail time at all).
So instead, DOJ had Schaffer plead guilty to a two-count criminal information, charging him with the substantive crimes of obstructing Congress and illegally carrying a dangerous weapon (bear spray) on restricted federal grounds. That allowed government officials to bray that Schaffer could be looking at 30 years in prison, which sure sounds a lot worse than five years. But it’s a feint. The 30-year level is just an aggregation of the maximum sentences prescribed by the two statutes in Schaffer’s guilty plea — i.e., the highest possible sentence that could potentially apply to anyone who violated these laws. The sentence a judge actually imposes within that 30-year range depends on the circumstances, with only the worst offenders getting the maximum sentence. Realistically, then, what matters in Schaffer’s case are the federal sentencing guidelines that apply specifically to him. In the plea agreement’s fine print, prosecutors concede that the guidelines call for a relatively paltry 41- to 51-month term, which may be reduced if his cooperation proves to be valuable.
I suspect that Schaffer is one of the unnamed, numbered “Persons” referred to in the Oath Keepers indictment. Obviously, he was not a CI on January 6. To the contrary, he is a UCC whose name is not mentioned for two reasons: (1) The Justice Department generally does not refer by name to people who are not charged in the particular indictment at issue. (2) Although DOJ departs from that practice if the person has been prosecuted for the same conduct in another case, Schaffer did not plead guilty to conspiracy; the Justice Department would typically not refer by name in a conspiracy charge to someone who has not been and will not be prosecuted on that charge.
Putting aside the Schaffer situation (which is not uncommon), there are lots of other reasons why someone could be identified as a UCC in an indictment but not be charged in the conspiracy count. For example, a UCC might not have been apprehended yet. If the UCC were named publicly before he was captured, he might well flee. So the government resists invoking the name.
Or, as often happens, prosecutors assess that they have a strong enough case to convict A but not B. So, they indict A but not B. At the trial, they use against A conspiracy evidence that implicates B. They are permitted to do this because, in the indictment charging A, they have named B as a UCC. Under the rules of evidence, if the government seeks to introduce evidence of a person’s participation in a conspiracy, it needs to show by only a preponderance of the evidence that the person is a member of that conspiracy. But to convict, the prosecutor must show proof beyond a reasonable doubt. It is thus not unusual for a conspirator to be unnamed in an indictment and identified as a UCC: Because the prosecutors believe the UCC is a member of the conspiracy but don’t yet have enough evidence to convict him, they don’t indict him but instead use evidence involving him against the conspirators they have charged.
In any event, as I said above, Carlson’s assumption that the unnamed “Persons” in the Oath Keepers indictment are UCCs is clearly reasonable, but it is not ironclad. When I was a prosecutor many moons ago, the usual practice in drafting indictments was to invoke the term “unindicted co-conspirator” to refer to UCCs (e.g., “On or about June 17, 2021, Defendant Smith met with Unindicted Co-conspirator A …”). To the contrary, the Oath Keepers indictment does not use the term “unindicted co-conspirator” when referring to Persons One, Two, Three, and Ten.
Nevertheless, the indictment does say, “The Oath Keepers are led by Person One.” It also describes the activities of Persons One, Two, Three, and Ten — particularly in the section describing “overt acts” of the conspiracy — as behavior undertaken to further the conspiracy. As a matter of law, “overt acts” are actions by which members of the conspiracy pursue the conspiracy’s objectives. Therefore, it seems safe to assume (as Carlson does, and I do) that Persons One, Two, Three, and Ten are UCCs, even though prosecutors do not expressly label them as such.
Confidential Informants
For our purposes, here is the critical distinction between UCCs and CIs: By definition, a confidential informant cannot be a member of a conspiracy — whether indicted or unindicted.
A CI is a covert operative of a law-enforcement agency — here, the FBI. At the FBI’s direction and under its supervision, the CI infiltrates suspected criminal activity, usually by pretending to be a participant in some conspiracy. CIs make observations of the actual conspirators, secretly record conversations with them, and quietly gather physical evidence. All of this is shared with the Bureau, with an eye toward the eventual prosecution of the conspirators — in which, if there is a trial (rather than guilty pleas), the CI usually testifies.
This “CI” terminology can be confusing. Sometimes, the person covertly infiltrating the conspiracy is not a civilian; he or she may be an FBI agent or other formally sworn law-enforcement officer. Literally speaking, such an “undercover agent” is a confidential informant — i.e., the agent is gathering information, and his tie to the FBI is confidential. But in law-enforcement patois, to avoid confusion, an undercover agent or cop is referred to as a “UC,” and the “CI” designation is used for civilian moles.
Terminology can also be confusing based on the timing of when someone becomes an informant.
Being a CI is dangerous, unpleasant work. Ruthless criminals kill people they suspect of betraying them, so informants worry constantly about their safety. They are often guilt-ridden because they inevitably form personal bonds with some of the people they are deceiving. Rarely does an adventurous, law-abiding civilian volunteer for that kind of work — those people become cops. CIs tend to assume the risks of spying for the government only because they have no better options. Most of them have been caught committing crimes; they work for the FBI in exchange for leniency. As explained above, the term “confidential informant” generally refers to this kind of person, who poses as a participant in an ongoing conspiracy, in order to gather real-time evidence for investigators.
But there is another kind of informant: a person who “flips” after being publicly charged with committing a crime. Such a person is usually not in a position to infiltrate ongoing criminal activity. He may be in custody, and even if he were released, everyone who knew that he had just been arrested would suspect him of cooperating with investigators. To get leniency from prosecutors, then, his only alternative is to become an accomplice witness. This is the Schaffer situation we discussed above: the former conspirator who pleads guilty and gives prosecutors damning information about his own and his confederates’ criminal activities. Such testimony shores up the prosecution and may even uncover previously unknown evidence and offenders. It is testimony, though, that relates what has happened in the past; it does not report what is happening in the present.
Sometimes other arrested conspirators know the accomplice is cooperating. Often, however, the government tries to keep the cooperation under wraps for as long as possible, to ensure the accomplice’s safety. The accomplice will thus be referred to as a “confidential informant” — because the fact that he is informing is being kept confidential. But that does not make him a CI in the usual sense of that term — i.e., one who pretends to participate in ongoing, real-time crimes in order to gather information at the FBI’s direction.
A Confidential Informant Working for the FBI Cannot Be a Conspirator
Why is this distinction important? Because a CI cannot be a member of any conspiracy he infiltrates on behalf of the FBI. By contrast, an accomplice witness is a member of the conspiracy. Indeed, the accomplice’s culpability is what makes him a valuable witness. He is not a real-time source; he becomes a government informant only after he agrees to cooperate (at which point, the conspiracy is usually over).
That brings us to why a CI working actively for the FBI can never properly be charged as a conspirator.
A conspiracy is an agreement to commit a crime. Conspiracy is what’s known as an “inchoate” offense because the offense is the agreement itself, not the crime that is the objective of the conspiracy, so a person can be guilty of conspiracy even if the objective crime is not accomplished. By contrast, the objective crime is called a “substantive” offense, and it must be accomplished in order to be prosecutable as such. For instance, if three guys agree to rob a bank but fail in the attempt, they are guilty of bank-robbery conspiracy but not of bank robbery. (They may also be guilty of attempted bank robbery, but that’s a diversion we needn’t get into.)
A CI does not agree to commit a crime. A CI gulls the actual conspirators into thinking he has joined their objective, but his intention is actually the opposite of theirs: The conspirators are trying to get away with it, whereas the CI is trying to stop them and collect enough evidence to convict them. Since there is no meeting of the minds between the CI and the actual conspirators, the CI cannot be a member of the conspiracy. Therefore, if prosecutors are drafting an indictment competently and honestly, they never refer to a CI as a “conspirator” — neither indicted nor unindicted.
Carlson asserts that the unidentified persons who are portrayed as UCCs in the Oath Keepers indictment are really CIs who “were organizing the attack on the Capitol.” He intimates that they were being paid by the government to do that. There is no evidence of this. Carlson and others contend that the government is concealing the identities of law-enforcement people who were involved in the January 6 events. The government, however, routinely withholds the identity of police, for their own safety, unless there is some legal reason to identify them. CBS reports that ten current or former law-enforcement officers are among the 465 who’ve been arrested for rioting offenses. Again, if these law-enforcement officers have been charged with January 6 crimes, then they cannot have been CIs.
Seeing January 6 for What It Was
It is not wrong for Carlson to be suspicious of the government’s motives. As I related above in discussing Schaffer, much about the Capitol riot investigation and prosecutions appears underhanded. Still, while it is not impossible that a prosecutor would unethically refer to CIs as if they were UCCs so as to conceal that the FBI instigated a crime, it is highly unlikely.
In all conspiracy cases, prosecutors are required to disclose to the defense the identities of UCCs, whether or not they are alluded to anonymously in the indictment. That’s because once a person becomes a member of a conspiracy, that person is responsible for all conspiratorial acts — even ones the person does not know about — as long as those acts were done in pursuit of the conspiracy’s aim. This means a defendant can be found guilty based on the statements and actions of UCCs. Ergo, to defend the case, the defense lawyers must know who the unindicted co-conspirators are.
Furthermore, if a CI obtains key evidence that the government wants to introduce at the trial, the prosecutor will be required to disclose extensive information about the CI in discovery, regardless of whether the CI is called to testify at the trial.
That is, competent prosecutors would never believe they could get away with hiding a CI’s existence or relationship with the FBI by disingenuously portraying the CI as a UCC in the indictment. Such a scam would be uncovered too easily. No federal judge would tolerate it, and there would be hell to pay for prosecutors and investigators who tried to pull it off.
To be clear, Carlson is right that it is ridiculous for Attorney General Merrick Garland to portray the Capitol riot as if it were a terrorist attack and the people behind it as the most dangerous national-security threat we face. As noted above, the conspiracy allegation is not a terrorism charge: It carries a penalty of no more than five years. Carlson is right to point out that, despite the government’s and the media’s claims to the contrary, there is no indication that racism motivated the riot (the Oath Keepers, for example, are not a white-supremacist organization, and the indictment does not even hint that race had anything to do with January 6). Carlson is right that, even as congressional Democrats posture about the supposed need for a commission to fully expose the events of January 6, the government is withholding mounds of information — including the identity of the security official who killed rioter Ashli Babbitt, a concealment that would be unfathomable in a case where a police officer killed an African-American criminal suspect or a Black Lives Matter rioter. And Carlson was right to call out the ludicrous suggestion by Frank Figliuzzi, a former top FBI national-security official, that congressional Republicans who cynically supported Trump’s scheme to overturn the election result are the equivalent of a terrorist organization’s “command and control element.”
I applaud Tucker for pressing these points in his uniquely compelling way. But just as it should be possible to grasp how pernicious the Capitol riot was without exaggerating it, it should also be possible to illustrate the overbearing nature of the prosecution without intimating that the FBI, rather than an unhinged mob urged on by President Trump himself, was the real culprit.