Fact-checking conspiracy theory that FBI orchestrated Capitol attack
Under almost any circumstances, experts said, undercover government operatives and informants cannot be described in government filings as unindicted co-conspirators. The main reason: A component of criminal conspiracy is the agreement to commit a crime. That isn't what undercover operatives do.
Posted — UpdatedIt’s been almost six months since hundreds of pro-Trump rioters stormed the U.S. Capitol on Jan. 6 in a brazen attempt to stop Congress from certifying Joe Biden’s victory in the 2020 presidential election.
Now, a new theory has emerged: the entire breach was secretly orchestrated by the FBI.
It soon made its way to the Twitter accounts of Republican politicians, like Reps. Marjorie Taylor Greene of Georgia and Matt Gaetz of Florida, and was amplified in various viral social media posts.
Revolver’s article, headlined, "Unindicted Co-Conspirators in 1/6 Cases Raise Disturbing Questions of Federal Foreknowledge," speculates that because there are unindicted, unnamed co-conspirators included in some of the Capitol rioters federal charging documents, it’s reasonable to assume that those people are FBI informants or agents.
It also questions whether these figures were "instigators" during the storming of the Capitol, suggesting that not only was the government involved, but its agents also caused violence and damage, and did nothing to stop it.
The story never answers its own questions and only offers circumstantial evidence, including the fact that informants and undercover FBI operatives were involved in the foiled October 2020 plot to kidnap Michigan Gov. Gretchen Whitmer and take over the state government.
In any case, this comparison is fraught. The plot in Michigan never happened, as is the case with most schemes that involve undercover agents and result in criminal charges.
Lisa Griffin, a law professor at Duke University who specializes in constitutional criminal procedure and federal criminal justice, called the suggestion "absurd."
"Undercover agents do not commit the crime of conspiracy by conducting an investigation," she said. "Referencing unindicted co-conspirators is disfavored but necessary in some situations, although never to document the role of law enforcement agents."
PolitiFact reached out to Revolver News but did not hear back. The FBI declined to comment.
"For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with ‘another person or persons known.’ In any indictment where an allegation that the defendant conspired with ‘another person or persons known’ is insufficient, some other generic reference should be used, such as ‘Employee 1’ or ‘Company 2’. The use of non-generic descriptors, like a person's actual initials, is usually an unnecessarily-specific description and should not be used."
Besides being a sitting president, there are multiple other reasons why someone might be included in an indictment as an unindicted co-conspirator: They haven’t been identified, there isn’t enough evidence to bring charges against them, they’ve been granted immunity of some kind, various cooperation deals, prosecutorial guidelines that counsel against charging, or other shortfalls in the cases that require delaying or forgoing charges.
But those same documents contradict the article’s own premise.
In two separate June hearings in front of Congress, FBI director Christopher Wray and Pentagon officials answered questions about the failure to adequately prepare for and respond to the Jan. 6 attack.
He added that "almost none" of the close to 500 people charged or found to be involved in the attack so far had been under FBI investigation previously.
"You can be darn sure that we are going to be looking hard at how we can do better, how we can do more, how we can do things differently in terms of collecting, analyzing and disseminating intelligence," Wray said.
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