[House Report 117-544]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-544
======================================================================
RESOLUTION OF INQUIRY REQUESTING THE PRESIDENT AND DIRECTING THE
ATTORNEY GENERAL TO TRANSMIT, RESPECTIVELY, CERTAIN DOCUMENTS TO THE
HOUSE OF REPRESENTATIVES RELATING TO RAY EPPS
_______
October 14, 2022.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
MINORITY VIEWS
[To accompany H. Res. 1356]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 1356) of inquiry requesting the President
and directing the Attorney General to transmit, respectively,
certain documents to the House of Representatives relating to
Ray Epps, having considered the same, report unfavorably
thereon with an amendment and recommend that the resolution not
be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 6
Committee Estimate of Budgetary Effects.......................... 6
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 6
Duplication of Federal Programs.................................. 6
Performance Goals and Objectives................................. 6
Advisory on Earmarks............................................. 6
Section-by-Section Analysis...................................... 6
Minority Views................................................... 6
Strike all that follows after the resolving clause and insert
the following:
That President Joseph R. Biden is requested, and Attorney General
Merrick B. Garland are directed, to transmit, respectively, to the
House of Representatives, not later than 14 days after the date of the
adoption of this resolution, copies of all documents, memoranda,
advisory legal opinions, notes from meetings, audio recordings, records
(including telephone and electronic mail records), correspondence, and
other communications, or any portion of any such communications, to the
extent that any such one or more items are within the possession of
President Joseph R. Biden or Attorney General Merrick B. Garland,
respectively, and refer to Ray Epps.
Purpose and Summary
H. Res. 1356 is a non-binding resolution of inquiry that
requests President Joe Biden and directs Attorney General
Merrick Garland to provide certain documents to the House of
Representatives relating to Ray Epps.
Background and Need for the Legislation
Resolutions of inquiry, if properly drafted, are given
privileged parliamentary status in the House. This means that,
under certain circumstances, a resolution of inquiry can be
considered on the House floor even if the committee to which it
was referred has not ordered the resolution reported and the
majority party's leadership has not scheduled it for
consideration. Clause 7 of rule XIII of the Rules of the House
of Representatives requires the committee to which the
resolution is referred to act on the resolution within 14
legislative days, or a motion to discharge the committee from
consideration is considered privileged on the floor of the
House. In calculating the days available for committee
consideration, the day of introduction and the day of discharge
are not counted.\1\ The 117th Congress operated under temporary
procedures ``that effectively `turned off' the 14-day
deadline'' for resolutions of inquiry until July 19, 2022.\2\
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\1\Wm. Holmes Brown, et al., House Practice: A Guide to the Rules,
Precedents, and Procedures of the House ch. 49, Sec. 6, p. 834 (2011).
\2\Christopher M. Davis, Resolutions of Inquiry in the House, Cong.
Rsch. Serv. 1 (Jul. 21, 2022), https://crsreports.congress.gov/product/
pdf/IN/IN10661/4.
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Under the Rules and precedents of the House, a resolution
of inquiry is a means by which the House requests information
from the President of the United States or the head of one of
the executive departments. According to Deschler's Precedents,
it is a ``simple resolution making a direct request or demand
of the President or the head of an executive department to
furnish the House of Representatives with specific factual
information in the possession of the executive branch.''\3\
Such resolutions must ask for facts, documents, or specific
information; they may not be used to request an opinion or
require an investigation.\4\ Resolutions of inquiry are not
akin to subpoenas; they have no legal force and thus compliance
by the Executive Branch with the House's request for
information is purely voluntary.
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\3\7 Deschler's Precedents of the United States House of
Representatives, H. Doc. No. 94-661, 94th Cong., 2d Sess., ch. 24,
Sec. 8.
\4\A resolution that seeks more than factual information does not
enjoy privileged status. Brown, supra note 1, at 833-34.
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According to a study conducted by the Congressional
Research Service (CRS), between 1947 and 2017, 313 resolutions
of inquiry were introduced in the House.\5\ Within this period,
CRS found that ``two periods in particular, 1971-1975 and 2003-
2006, saw the highest levels of activity on resolutions of
inquiry'' and that ``the Committees on Armed Services, Foreign
Affairs, and the Judiciary have received the largest share of
references.''\6\ CRS further found that ``in recent Congresses,
such resolutions have overwhelmingly become a tool of the
minority party in the House.''\7\
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\5\Christopher M. Davis, Resolutions of Inquiry: An Analysis of
Their Use in the House, 1947-2017, Cong. Rsch. Serv. R40879, at i (Nov.
9, 2017), https://sgp.fas.org/crs/secrecy/R40879.pdf.
\6\Id.
\7\Id.
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A Committee has a number of choices after a resolution of
inquiry is referred to it. It may vote on the resolution up or
down as introduced or it may amend it, and it may report the
resolution favorably, unfavorably, or with no recommendation.
The fact that a committee reports a resolution of inquiry
adversely does not necessarily mean that the committee opposes
looking into the matter. In the past, resolutions of inquiry
have frequently been reported adversely for several reasons.
The two most common reasons are substantial compliance and
competing investigations.
H. Res. 1356 was introduced by Representative Paul Gosar
(R-AZ) on September 15, 2022. The resolution seeks information
related to Ray Epps in the possession of the President and the
Attorney General.
The individual that is the focus of this resolution of
inquiry is the subject of a baseless conspiracy theory that
alleges he was an FBI plant in the crowd on January 6, 2021,
who instigated the assault on the U.S. Capitol.\8\
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\8\Alan Feuer, A Trump Backer's Downfall as the Target of a Jan. 6
Conspiracy Theory, New York Times (Jul. 13, 2022).
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Ray Epps was a Donald Trump supporter who traveled from
Arizona to Washington, D.C. to participate in the January 6th
rally. Right-wing message boards, conservative media, former
President Trump, and some Members of Congress have spread an
alternative narrative alleging that Mr. Epps, acting on behalf
of the government, was responsible for the insurrection by
egging on otherwise peaceful Trump supporters.\9\ As a result
of this misinformation, Mr. Epps has received death threats,
has lost his business, and has been forced to move away from
his home in Arizona.\10\ This resolution, rather than seeking
information that would move the January 6th investigation
forward, instead would perpetuate this conspiracy theory and
bring further harm to Mr. Epps.
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\9\Id.
\10\Id.
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In addition to serving as an opportunity to further spread
misinformation, this resolution of inquiry is a waste of this
Committee's valuable time and resources. The January 6th
Committee interviewed Mr. Epps twice in connection with its
overall investigation of the insurrection.\11\ A Republican on
that Committee, Representative Adam Kinzinger (R-IL) said,
``The narrative on Jan. 6 has been that it's first antifa, or
patriots who love their country, maybe crisis actors, def false
flag operatives, or now FBI agents . . . Take your pick. Truth
is they were rioters incited by lies. And RAY is no fed. Just
another misled man.''\12\
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\11\Id.
\12\David Knowles, ``Rep. Kinzinger looks to put the Ray Epps
conspiracy theory to bed once and for all,'' Yahoo (Jan. 12, 2022).
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By focusing the narrative on a disproven conspiracy theory,
Donald Trump, some Republicans in Congress, and conservative
media personalities are refocusing the conversation around
January 6th on a single man, supposedly representing the
government, and away from the mistakes of Republicans who
spurred the attack. The thesis that the insurrection was a
protest that got out of control--one that could be influenced
by a single man--is not backed up by the facts.
The insurrectionists at the Capitol on January 6th came
prepared for an attack. The insurrection was well documented,
both in media coverage and through participants' cell phone
recordings. These videos clearly show the crowd outside the
Capitol was armed and prepared to engage in violence.
Furthermore, the January 6th Committee has discovered that far-
right extremist members of the Oath Keepers stashed weapons
around the DC area in advance of the march on the Capitol.\13\
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\13\Alexander Mallin and Will Steakin, ``Oath Keepers stashed
weapons at hotel for potential Jan. 6 violence, prosecutors indicate,''
ABCNews (Apr. 13, 2022).
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Conspiracy theories like the one at the heart of H. Res.
1356 are designed to excuse people who break the law, just
because they broke the law in support of former President
Donald Trump. Many of the over-390 people who have pleaded
guilty to their role in the insurrection have cited loyalty to
Donald Trump as the driving reason behind the attack on the
Capitol.\14\ These individuals believed they were acting on
behalf of Donald Trump--not Ray Epps. The resolution also keeps
the American public from getting to the truth by diverting
focus away from the fact-finders on the January 6th Committee
and potentially interfering with ongoing criminal
investigations.
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\14\Madison Hall, ``396 rioters have pleaded guilty for their role
in the Capitol insurrection so far. This table is tracking them all,''
Yahoo (Sep. 21, 2022).
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The Judiciary Committee will investigate any credible
allegations of misconduct by the Executive Branch to the extent
such allegations fall within this Committee's jurisdiction.
However, the Committee will not do so through politically
charged resolutions of inquiry that could jeopardize the
integrity of ongoing investigations. The Judiciary Committee
and the House overall should not needlessly request information
that furthers conspiracy theories and moves us away from the
truth.
Hearings
The Committee on the Judiciary held no hearings on H. Res.
1356.
Committee Consideration
On September 21, 2022, the Committee met in open session
and ordered the resolution, H. Res. 1356, unfavorably reported
with an amendment by a rollcall vote of 22 to 13, a quorum
being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following rollcall vote occurred during the Committee's
consideration of H. Res. 1356:
1. A motion to report H. Res. 1356 unfavorably passed by a
rollcall vote of 23 to 13. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of House rule X, are incorporated in the descriptive portions
of this report.
Committee Estimate of Budgetary Effects
Pursuant to clause 3(d)(1) of House rule XIII, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(2) of House rule XIII and section
308(a) of the Congressional Budget Act of 1974, and pursuant to
clause 3(c)(3) of House rule XIII and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
by not received from the Director of the Congressional Budget
Office a budgetary analysis and a cost estimate of this
resolution.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H. Res. 1356 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H. Res. 1356 requests President Biden and
directs Attorney General Garland to transmit to the House of
Representatives documents relating to Ray Epps.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H. Res. 1356
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(e),
9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
The following discussion describes the resolution as
reported by the Committee.
H. Res. 1356, a non-binding resolution of inquiry, requests
President Joe Biden and directs Attorney General Merrick
Garland to transmit to the House of Representatives documents
relating to Ray Epps.
Minority Views
H. Res. 1356 requests the President and directs the
Attorney General, respectively, to provide the House of
Representatives with documents and communications in their
possession referring to Ray Epps.
Questions remain concerning Ray Epps's actions prior to the
events at the U.S. Capitol on January 6, 2021. In a video taken
on January 5, Epps appeared to encourage people to go into the
Capitol the following day, shouting, ``We need to go into the
Capitol'' and ``I'm probably going to go to jail for it, OK?
Tomorrow, we need to go into the Capitol.''\1\ The video also
shows the crowd around Epps chanting, ``fed''--implying that
the crowd believed Epps was a federal agent or was working on
behalf of a federal law-enforcement agency. There are also
videos of Epps on January 6, 2021, standing outside the Capitol
speaking with other protestors just before the crowd began to
move past the barricades and towards the Capitol.\2\ Epps was
reportedly on the FBI's Most Wanted list in connection with the
events of January 6 but was removed from the list on July 1,
2021, for unknown reasons.\3\
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\1\Miss N0b0dy (@MissN0b0dy1), Twitter, (Jan. 5, 2021, 10:31 PM),
https://twitter.com/MissN0b0dy1/status/1346660587636477954.
\2\Anne Ryman, Arizona man went to Washington day of Capitol riot,
appears to talk about plans in video, AZ Central (Jan. 11, 2021),
https://www.azcentral.com/story/news/local/arizona/2021/01/11/fbi-
capitol-investigation-arizona-trump-supporter/6624406002/.
\3\Tim Hains, Will Cain: So Where Has January 6 ``FBI Most Wanted''
Ray Epps Been? ``The Daily Mail'' Found Him On His Ranch In Arizona,
RealClear Politics (Dec. 29, 2021), https://www.realclearpolitics.com/
video/2021/12/29/will_cain_so_where_has_january_ 6_fbi_most_wanted_
ray_epps_ been_the_daily_mail_found_ him_on_his_ranch_in_arizona.html.
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In January 2021, a reporter spoke with Epps, who admitted
to being in Washington, D.C. during the relevant period.\4\
When the reporter asked Epps whether he made the comment of
``we need to go into the Capitol,'' Epps replied, ``The only
thing that meant is we would go in the doors like everyone
else. It was totally, totally wrong the way they went in.''\5\
Epps denied doing anything wrong. Several months later,
reporters from the Daily Mail visited Epps on his property
outside in Arizona and Epps told the reporters to leave.\6\
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\4\Ryan, supra note 2.
\5\Id.
\6\Hains, supra note 3.
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Representative Thomas Massie (R-KY) and Senator Ted Cruz
(R-TX) have asked Biden Administration officials whether there
were federal agents or confidential informants involved in the
events surrounding January 6, 2021. During a House Judiciary
Committee hearing on October 21, 2021, Rep. Massie asked
Attorney General Merrick Garland: ``Can you tell us--without
talking about particular incidents or particular videos--how
many agents or assets of the federal government were present on
January 6? Whether they agitated to go into the Capitol and if
any of them did?''\7\ In response, Attorney General Garland
stated, ``I'm not going to comment on an investigation that's
ongoing.''\8\ During a hearing of the Senate Judiciary
Committee on January 11, 2022, Senator Ted Cruz asked then-FBI
Assistant Executive Director Jill Sanborn: ``Did federal agents
or those in service of federal agents actively encourage
violent and criminal conduct on Jan. 6?''\9\ In response,
Sanborn testified, ``Not to my knowledge, sir.''\10\ Senator
Cruz then asked, ``Was Ray Epps a fed?'' and Sanborn responded
by saying, ``Sir, I cannot answer that question.''\11\
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\7\Oversight of the Department of Justice, Hearing Before the H.
Comm. on the Judiciary, 117th Cong. (2021); Anne Ryman, Arizona man who
was at U.S. Capitol Jan. 6 featured in video during House hearing with
AG Merrick Garland, AZ Central (Oct. 22, 2021), https://
www.azcentral.com/story/news/local/arizona/2021/10/22/arizona-man-
capitol-riot-house-hearings-thomas-massie-merrick-garland/6135771001/.
\8\Id.
\9\The Domestic Terrorism Threat One Year After January 6, Hearing
Before the S. Comm. on the Judiciary, 117th Cong. (2022); Hannah
Grossman, Cruz slams `arrogance' of FBI to stonewall his Jan. 6
questions: `Did they actively solicit illegal conduct?', Fox News (Jan.
12, 2022), https://www.foxnews.com/media/ted-cruz-fbi-arrogance-
january-6.
\10\Oversight of the Department of Justice, supra note 7.
\11\Id.
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On January 11, 2022, the Democrat-run January 6th Select
Committee issued a statement confirming that Epps had testified
to the committee. The statement read, ``The Select Committee is
aware of unsupported claims that Ray Epps was an FBI informant
based on the fact that he was on the FBI Wanted list and then
was removed from that list without being charged. The Select
Committee has interviewed Mr. Epps. Mr. Epps informed us that
he was not employed by, working with, or acting at the
direction of any law enforcement agency on January 5th or 6th
or at any other time, and that he has never been an informant
for the FBI or any other law enforcement agency.''\12\
According to the Washington Examiner, Chairman Bennie Thompson
said that the Select Committee will release the Epps' interview
transcript ``at some point.''\13\ To date, the January 6th
Select Committee has not publicly released the transcript.
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\12\Emily Brooks, Jan. 6 committee: Provocateur Ray Epps not FBI
informant or agent, Wash. Examiner (Jan. 11, 2022), https://
www.washingtonexaminer.com/news/jan-6-committee-provocateur-ray-epps-
not-fbi-informant-or-agent.
\13\Emily Brooks, Ray Epps interview transcript with Jan. 6 panel
to be public `at some point', Wash. Examiner (Jan. 21, 2022), https://
www.washingtonexaminer.com/news/ray-epps-interview-transcript-with-jan-
6-panel-to-be-public-at-some-point.
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On September 21, 2022, the Committee considered H. Res.
1356 at a business meeting. Democrats refused to acknowledge
the legitimate questions posed by Republican members about Ray
Epps and the potential involvement of federal assets
surrounding the events of January 6, 2021. Rather than
receiving basic facts and information, Democrats voted to
report H. Res. 1356 unfavorably to the House.
Jim Jordan,
Ranking Member.
[all]