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President Joe Biden says U.S. allies were “shocked” and “surprised” by the Jan. 6 insurrection at the U.S. Capitol, but they nevertheless are unconcerned about American leadership on the world stage. (June 14) AP Domestic

The claim: FBI operatives organized the Jan. 6 attack on the U.S. Capitol 

In the months following the deadly Jan. 6 attack on the United States Capitol by rioters seeking to overturn the 2020 presidential election results, conservative media personalities have attempted to downplay the insurrection and shift blame.

Some baselessly claimed the mob of Donald Trump supporters who breached Capitol barricades — fueled by unproven allegations of voter fraud — was actually a crowd of antifa members in disguise. Those allegations were wrong.

Now, claims that undercover FBI agents were behind the Capitol insurrection are circulating on social media.

“Evidence surfaces that the FBI planned and executed January 6 Capitol riot,” the Tatum Report wrote in a June 17 Instagram post.

The narrative started with a June 14 report by conservative website Revolver News. The story says there’s a “strong possibility” the federal government had “undercover agents or confidential informants embedded within the so-called militia groups” that were seeking to obstruct the Senate certification of the 2020 election results. The Instagram post linked to a Tatum report post that recapped the Revolver News story. USA TODAY reached out to Tatum Report for comment

After the article was published, Fox News host Tucker Carlson, Republican lawmakers and social media users amplified it across platforms.

Facebook users have shared an open letter from Rep. Matt Gaetz, R-Fla., in which he demands FBI Director Christopher Wray “fully disclose the role and involvement of FBI operatives during the January 6th Capitol riot.” Other users shared a clip of Carlson’s June 15 show, during which he said “FBI operatives were organizing the attack on the Capitol on January 6.”

But that theory relies on a false assumption: that anyone identified as an “unindicted co-conspirator” in charging documents is a government agent. 

In fact, legal experts say that term cannot be used to describe FBI agents or undercover government operatives. Charging documents and other evidence indicate that the Jan. 6 rioters included Trump supporters, conspiracy theorists and members of far-right groups.

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Fox News and social media users who amplified Revolver News’ claims did not return requests for comment.

Unindicted co-conspirators, explained

The term “unindicted co-conspirators” refers to people who allegedly took part in the same offense in some fashion but are not being criminally charged for their role, Ira Robbins, an American University law professor, wrote in a 2004 paper that represents the legal consensus on the term.

This can include someone who cooperated with law enforcement to receive a deal or who authorities don’t feel they have sufficient evidence to charge.

The term became well-known in 1974, when a grand jury applied it to President Richard Nixon during the Watergate scandal.

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The Justice Department’s policy says federal prosecutors should not name unindicted co-conspirators “in the absence of some significant justification.”

Government informants can’t be described as co-conspirators

The primary evidence presented in the Revolver News story — federal charging documents related to the Jan. 6 insurrection — don’t support its claim about FBI informants organizing the riot.

Revolver News is run by former Trump speechwriter Darren Beattie, who was fired in 2018 for his appearance at a conference featuring white nationalists. It’s unclear who wrote the site’s June 14 report, as it doesn’t have a byline.

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The story argues that because upward of 20 unindicted co-conspirators listed in federal charging documents haven’t been charged, there is a “disturbing possibility” that they could be undercover FBI agents or federal informants.

That’s not actually a possibility, legal experts say.

“Prosecutors would not name FBI agents as unindicted co-conspirators,” Robbins told USA TODAY via email. “Tucker Carlson’s allegation that the FBI organized the attack on the Capitol is pure fantasy.”

Robbins said while it is possible FBI agents were acting undercover in extremist organizations involved in the Capitol riot, that “would not necessarily mean they had instigated the insurrection.”

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Similarly, Cornell Law School professor Jens David Ohlin told the Washington Post there are “many reasons why an indictment would reference unindicted co-conspirators, but their status as FBI agents is not one of them.” In a 1985 ruling, the  U.S. Court of Appeals for the 11th Circuit  noted that “government agents and informers cannot be conspirators.”

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The FBI declined to comment for this fact check. 

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A new Senate report on the Jan. 6 insurrection found U.S. intelligence officials failed to warn of potential violence at the U.S. Capitol. USA TODAY

No evidence unnamed individuals in Caldwell case are FBI agents

The Revolver News article singles out unnamed individuals mentioned in a case involving Thomas Caldwell of Virginia, an alleged Oath Keepers member who is facing charges related to the Capitol attack.

In an emailed statement to USA TODAY, Beattie said the issue from “our perspective is not the specific phrase ‘unindicted co-conspirator'” but that “the individuals referenced in the 1/6 charging documents (referred to variously as Persons or individuals), remain unindicted on account of a prior relationship with federal law enforcement.”

But there’s no evidence those unnamed individuals, referred to as “persons” in court filings, are federal agents — and ample evidence they are people close to Caldwell.

Charging documents identify the leader of the Oath Keepers, a far-right militia group, as “PERSON ONE.” (That person is Stewart Rhodes, and there is no evidence he is an undercover government agent.)

“PERSON TWO” is also not a secret government agent, as the Revolver News article suggests. Charging documents indicate Caldwell stayed with “PERSON TWO” at an Arlington hotel and took “selfie” photographs with them on the perimeter of the Capitol. 

A criminal affidavit against Caldwell and Oath Keepers members Donovan Crowl and Jessica Watkins says Caldwell stayed at the hotel with his wife, Sharon, who has not been charged with a crime. 

Further, a defense filing from May 26 says Caldwell “rarely travels without his wife” due to “physical limitations and health concerns.” Caldwell also shared on Facebook photos of he and his wife at the Capitol on Jan. 6, according to the Washington Post.

The Revolver News story compares the Capitol attack to the October 2020 plot to kidnap Michigan Gov. Gretchen Whitmer, which involved undercover federal agents. But The New York Times noted operatives involved in that case were referred to in the criminal complaint as “confidential human sources” and “undercover employees,” not “unindicted co-conspirators.”

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Beattie did not present any additional evidence to support the Revolver News article when he appeared as a guest on Carlson’s show.

Rioters included Trump supporters, far-right groups

While authorities are still investigating who organized and led the insurrection, court documents and other available evidence show the rioters are linked to far-right extremist groups, including the Proud Boys, the Oath Keepers and the Three Percenters. 

QAnon followers and extremists talked on online forums about a siege of the Capitol as early as December, NBC News reported. Experts told USA TODAY the Capitol attack was the result of years of conspiracy theories and misinformation. 

A USA TODAY review of charging documents found nearly all conspiracy charges are against members of the Proud Boys or the Oath Keepers, or people who acted with them. Several of the alleged conspirators attended or scheduled paramilitary training and recruited others to their cause.

Similarly, a review by the Associated Press of public records associated with more than 120 people at the insurrection found rioters included supporters of the baseless QAnon conspiracy theory, Trump supporters, far-right militants and white supremacists. A ProPublica collection of more than 500 videos from Jan. 6 shows rioters wearing Trump apparel, QAnon symbols and Confederate flags. 

As of June 23, more than 400 arrests had been made in connection with the insurrection, none of which included charges against an FBI agent. Testimony from rioters who stormed the Capitol said they felt called to Washington by Trump and his false claim that the election was stolen, according to the Washington Post

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“This was not simply a march. This was an incredible attack on our institutions of government,” Jason McCullough, an assistant U.S. attorney, said during a March hearing.

Our rating: False

The claim that the FBI orchestrated the Jan. 6 attack on the Capitol is FALSE, based on our research. There is no evidence that “unindicted co-conspirators” mentioned in charging documents are undercover FBI agents. Legal experts say undercover government operatives and informants cannot be named in government filings as unindicted co-conspirators. The best available evidence identifies the rioters as Trump supporters, conspiracy theorists and members of far-right groups.

Our fact-check sources: 

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