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DOJ declined to prosecute Ray Epps. Now it wants him sent to prison.

In July 2021, six months after the deadly pro-Trump riot at the U.S. Capitol, the Justice Department officially declined to prosecute a 65-year-old named Ray Epps.

“Investigation did not reveal sufficient evidence that Epps entered the U.S. Capitol on January 6, 2021, engaged in acts of violence or committed any other criminal violations,” an FBI agent wrote.

Two and a half years later, Epps was charged with misdemeanor disorderly conduct and promptly pleaded guilty. And in a sentencing memorandum filed Tuesday, the government said he actually engaged in “felonious” behavior and should spend six months behind bars.

It was the latest turn in an unusual case defined less by what Epps did than what he did not do. The Arizona man became a focus of a conspiracy theory that the federal government ignited the Capitol riot. His defense attorney, Edward Ungvarsky, said the charging reversal “seems to be an ill-considered reaction to extremists’ relentless pressure on the government to charge Mr. Epps.”

A spokeswoman for the U.S. Attorney’s Office for the District of Columbia declined to comment.

In the years since the riot, Epps became a focus of right-wing activists seeking to shift blame from former president Donald Trump and his followers to the government and left-wing protesters. Fox News falsely accused him of being an undercover FBI operative. (He is now suing the network for defamation.) Republican lawmakers amplified the conspiracy theory in hearings and news conferences. Trump has referenced it in speeches and demanded information on Epps in his own Jan. 6 criminal case.

Violent threats deemed credible by the FBI followed, along with harassment that forced the Epps family to close their wedding venue business and move to another state. They found shell casings on their land. People pretended they were interested in getting married at the Epps’ property so they could verbally abuse him and his wife in person. After Trump held a rally nearby in 2022, some of his supporters then traveled to the Epps’ property and disrupted a wedding.

“I live in constant fear that we will be recognized that someone will find out where we live and reveal it to others and that part of the nightmare will start all over again,” his wife said in a letter to the court.

Justice Department leaders have repeatedly confirmed that Epps never worked for or with them. In its sentencing filing, the government said Epps “has never been a government employee or agent, other than his four years of service in the Marines from 1979-1983.”

Epps called the FBI two days after the riot, according to the court record, to identify himself as one of the people depicted on an FBI website as a “person of interest” in the Capitol attack. He acknowledged he was “guilty of trespassing” on the Capitol grounds but said he was trying to calm down others in the crowd. The government has not pursued cases against people who did not enter the building without evidence of other crimes.

Prosecutors now say Epps not only trespassed but was part of violence against police, even if he did not personally touch any officers. Epps was at the front of the mob that breached the first barricades on the Capitol grounds, pushed police back toward the building and shoved a giant “Trump” sign into a line of officers. Epps went on to brag to his nephew that he “orchestrated” the event by encouraging people to go to the Capitol.

While acknowledging Epps “made at least five attempts to deescalate conflicts between other rioters and police officers,” Assistant U.S. Attorney Michael M. Gordon wrote in his sentencing memo that Epps also “engaged in collective aggressive conduct” and helped “clear … a path that inspired others to engage in dangerous and lawless behavior.”

Epps’s wife said she asked her husband to go to D.C. for the Jan. 6 rally because their son was committed to going and she did not want him to be there alone.

“We were loyal Fox News viewers,” she wrote, and “were concerned with the violence Fox News was sharing on the news taking place in various states with ‘Antifa’ and ‘Black Lives Matter’.”

The night before the riot, Epps and his son joined a crowd of Trump supporters at D.C.’s Black Lives Matter Plaza, some of whom were advocating violence against counterprotesters.

“That’s not what it’s about,” Epps said in an exchange caught on video. “Tomorrow, we need to go in to the Capitol. Into the Capitol.” He added, “Peacefully.” Ungvarsky said Epps was under the mistaken impression that the building would be open to visitors. Listeners to Epps that night immediately began chanting, “Fed! Fed!” because they suspected he was a government instigator, the video shows.

That video was later used to suggest Epps was a government plant there to entrap Trump supporters. So was video of Epps from the next day just before the breach of the first barricades. Epps says something to Ryan Samsel, who proceeds to push a barricade and knock down a police officer. Both men have said Epps told Samsel not to attack police.

Gordon described Epps’s case as “unique” because he has “received significant and dangerous attention.” Gordon said Epps was charged with a misdemeanor and not a felony because of his cooperation, remorse and efforts to de-escalate violence.

“I am sincerely sorry for going to Washington D.C. and saying some absurd things while there,” Epps wrote to the court. “The blame of the insurrection is not on the FBI. It is on those who were at the Capitol and engaged in insurrectionist activities and those who misled Americans like myself, into believing the election had been stolen.”

This post appeared first on The Washington Post

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