CLAIM: Freedom of Information Act requests show a dozen phone calls between Ray Epps’ cell phone and House Speaker Nancy Pelosi’s office a week before the Capitol insurrection on Jan. 6, 2021.
THE FACTS: Such records would not be obtainable through FOIA requests, because Congress is exempt from the law, legal experts say. Epps, an Arizona man who was filmed encouraging others to enter the U.S. Capitol the night before the riots, has long been the subject of a baseless conspiracy theory that he is a federal agent who helped orchestrate the insurrection. There’s no evidence to suggest that Epps was anything but a disgruntled supporter of former President Donald Trump, and Epps has testified to the House committee investigating Jan. 6 that he wasn’t working for law enforcement. But a new false claim based on the conspiracy still circulated widely on Twitter. “Freedom of Information Act requests show a dozen phone calls between the cell phone of Ray Epps and the office of Speaker Pelosi in the week before#January6th,” reads the tweet, which has been shared more than 15,000 times. The user provided no evidence for the claim. Drew Hammill, a spokesperson for Pelosi, said in an email to the AP that the claim is false. And experts in the Freedom of Information Act — which allows members of the public to request records from federal agencies — confirmed that such information cannot be obtained through a FOIA request. Congress is not subject to the law, which is limited to the executive branch of the federal government and agencies, experts said. “It does not apply to Congress, the courts, state and local governments, or private entities,” Kel McClanahan, executive director of the National Security Counselors law firm, told the AP in an email. “A right to access public records exists under the common law which has been occasionally interpreted by courts to apply to certain Congressional offices, but no Congressional office would voluntarily turn over such information without litigation,” McClanahan wrote. If such a case were litigated, the congressional office would likely win, because phone records would fall under the “speech or debate” clause of the U.S. Constitution, which places rigid restrictions on what information, if any, members of Congress can release, McClanahan said. Adam A. Marshall, a lawyer at the Reporters Committee for Freedom of the Press, concurred that such information couldn’t be obtained through FOIA. “Congress is not subject to FOIA. It doesn’t matter what type of records are at issue,” Marshall said in an interview with the AP. Republican Rep. Adam Kinzinger, who led questioning in the closing summer hearing of the Jan. 6 committee, also tweeted that the claim was false. “Take a gander. Absolutely false, literally made up, yet tens of thousands of RT’s, This is what democracy is up against,” Kinzinger said. “It’s time for the uneasy alliance between democracy defending people of all political stripes. #misinformation.” Epps did not respond to a request for comment.