There is no evidence that “unindicted co-conspirators” mentioned in federal indictments related to the Jan. 6 Capitol attack are undercover FBI agents or informants, as conservative outlets have claimed or suggested. Legal experts and federal case law say that government agents and informants cannot be labeled conspirators to a crime.
Some conservative outlets have concluded or suggested that undercover federal agents or informants helped plan and carry out the Jan. 6 attack on the U.S. Capitol. But there is no evidence that happened.
The unfounded claims largely originated with a so-called “seismic exposé” by the conservative website Revolver News, which encouraged members of Congress to question FBI Director Christopher Wray about the “possibility” that the Capitol riot was orchestrated by individuals working with or on behalf of the government.
The June 14 Revolver News report said that the federal documents charging numerous alleged Capitol rioters with crimes mention “upwards of 20 unindicted co-conspirators” — “all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.”
Thus, Revolver News argued, one of the questions Wray should have to answer is: “[O]f all of the unindicted co-conspirators referenced in the charging documents of those indicted for crimes on 1/6, how many worked as a confidential informant or as an undercover operative for the federal government (FBI, Army Counterintelligence, etc.)?”
The article further said: “If it turns out the federal government did in fact have undercover agents or confidential informants embedded within the so-called militia groups indicted for conspiring to obstruct the Senate certification on 1/6, the implications would be nothing short of seismic. Especially if such agents or informants enjoyed extremely senior-level positions within such groups.”
While the article hedged a bit, saying there was a “strong possibility” that happened, others have treated the suggestion as a confirmed fact — which it is not.
Referencing the Revolver News story on his June 15 show, for example, Fox News’ Tucker Carlson first said “potentially” and “almost certainly” FBI agents were involved, and then definitively declared that “FBI operatives were organizing the attack on the Capitol on Jan. 6.”
“So it turns out that this ‘white supremacist insurrection’ was, again by the government’s own admission in these documents, organized, at least in part by government agents,” Carlson said.
In addition, a June 17 post on the Tatum Report’s Instagram account said “Evidence Surfaces That The FBI Planned And Executed January 6 Capitol Riot.” The corresponding article on tatumreport.com highlighted Revolver News’ reporting.
Republican members of Congress have pushed the theory as well.
In a June 16 Facebook post, Rep. Marjorie Taylor Greene of Georgia said, “We need names and answers about the FBI operatives, who were involved in organizing and carrying out the Jan 6th Capitol riot.”
And in a June 16 letter to Wray, Rep. Matt Gaetz of Florida and three other Republican lawmakers asked the FBI director to answer three of the questions the Revolver News article posed — including the one about how many unindicted co-conspirators were operatives or informants for the government.
But several legal experts have said that the mere mention of “unindicted co-conspirators” in federal charging documents is not evidence that any or all of those unidentified individuals were doing the bidding of the government.
In an article addressing such claims, the Washington Post quoted Cornell Law School Professor Jens David Ohlin as saying, “There are many reasons why an indictment would reference unindicted co-conspirators, but their status as FBI agents is not one of them.”
And Duke Law School Professor Lisa Kern Griffin told the newspaper that “undercover officers and informants can’t be ‘co-conspirators’ for the purposes of establishing an agreement to violate the law, because they are only pretending to agree to do so.”
“An unindicted co-conspirator has committed the crime of conspiracy, and investigative agents doing their jobs undercover are not committing crimes,” Griffin said.
Andrew McCabe, a former FBI deputy director, made similar arguments in a June 16 CNN interview refuting the claims Carlson made on his TV show.
“When an indictment is written, at the time the indictment is written, and signed off by the judge, there are people who need to be referred to, in the indictment, just to make it a coherent story, so it makes sense, but who the government is not prepared to charge at that time,” McCabe said. “There may be all kinds of different reasons that they’re not prepared to charge that person at that time.”
“But the one reason that does not exist is the one that [Carlson] suggested,” McCabe added. “It’s not an undercover officer, because you cannot refer to those people as unindicted co-conspirators.”
Indeed, federal case law from 1985 (United States v. Rodriguez) acknowledged that “government agents and informers cannot be conspirators.”
Also, a Department of Justice manual advises federal prosecutors not to identify unindicted co-conspirators by name without “some significant justification.”
In a 2004 paper, American University Washington College of Law Professor Ira P. Robbins argued that naming those individuals who have not been charged with a crime should be prohibited because it violates their due process rights.
Robbins told the Washington Post that claims and suggestions that federal agents organized the Jan. 6 Capitol attack amount to a “speculative inflammatory leap … which may lack any basis in reality.”
“Unindicted Co-Conspirators in 1/6 Cases Raise Disturbing Questions of Federal Foreknowledge.” Revolver.news. 14 Jun 2021.
“Tucker Carlson Tonight.” Video. Fox News. 15 Jun 2021.
Rooke, Marmee. “Evidence Surfaces That The FBI Planned And Executed January 6 Capitol Riot.” Tatumreport.com. 17 Jun 2021.
Blake, Aaron. “Tucker Carlson’s wild, baseless theory blaming the FBI for organizing the Jan. 6 Capitol riot.” Washington Post. 16 Jun 2021.
Cohen, Marshall. “Fact-check: Fox News and Republican lawmakers push new false flag conspiracy that FBI orchestrated US Capitol attack.” CNN.com. 17 Jun 2021.
Egger, Andrew. “The New January 6 Scapegoats.” The Dispatch. 18 Jun 2021.
Gaetz, Matt, et. al. Letter to FBI Director Christopher Wray. 16 Jun 2021.
“Cuomo Prime Time.” CNN. 16 Jun 2021.
U.S. Department of Justice. Justice Manual. Accessed 18 Jun 2021.