[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.

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