Jurisprudence

Sentencing the First Capitol Rioter Was the Easy Part

One insurrectionist is headed to prison. What about the 500 others who’ve been charged?

The Capitol is seen behind a fence.
The U.S. Capitol is seen behind security fencing on July 6. Anna Moneymaker/Getty Images

Listen to What Next:

For the past six months, BuzzFeed News legal reporter Zoe Tillman has been keeping a growing list of all the people facing charges for storming the Capitol back in January—nearly 550, as of our conversation. Tillman says these cases fall into two categories: the people facing misdemeanors just for being there, and the people facing felonies. This latter group ranges from the people who hurt police officers to those who simply rifled through lawmakers’ desks—and all of this of this was of course documented. For example: In a video a New Yorker writer took that fateful day, you can see a guy in a black T-shirt with long dark hair milling in the foreground. You never hear him speak, but you see him pat his chest as another man offers a prayer through a megaphone. This guy’s name is Paul Hodgkins, and earlier this week, he became the first person to face prison time for what he did that day. On Wednesday’s episode of What Next, I spoke with Tillman about what we can learn about Jan. 6—and how it’s being written into the American story—from this very first felony conviction. Our conversation has been edited and condensed for clarity.

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Mary Harris: My first question when I learned that Paul Hodgkins was being sentenced this week was: Why this guy first? He’s not one of the more notorious faces that folks got to know on Jan. 6.

Zoe Tillman: It’s this guy first because he wanted to be first. Hodgkins was saying, I want out, I want to get this done with, and I want to get as much credit as I can so that I hopefully face as little time behind bars as possible.

And Hodgkins wanted to be first, because he was hoping for a reduced sentence. By pleading early, he could set the sentencing standard—and even hope for a more lenient one, since his punishment wasn’t being measured against others’.

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I read some other news outlets characterizing this plea and sentencing as a possible indicator of how hundreds of other Captiol rioter cases could go. Do you think this case has that kind of predictive power?

It absolutely does. It is now sort of a line in the sand for the felony cases going forward.

Let’s talk a little bit about how Paul Hodgkins’ case stacks up against those cases.

Pretty much everyone is facing the same four misdemeanor counts: illegally going into the Capitol, disruptive conduct, disorderly conduct, and parading, picketing, and demonstrating in the Capitol building. These all have maximum penalties between a year and six months.

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I never knew parading was something one could be charged with.

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You cannot parade inside the Capitol building—that is a misdemeanor crime. So a lot of times when there have been others demonstrations against things happening in Congress and people go inside and they do a sit-in, that’s often what you see charged, because it’s a specific offense for doing something you’re not supposed to do inside the Capitol building as opposed to disorderly conduct generally out in the world.

What about the felony charges?

The most common charge is the one Hodgkins pleaded guilty to, which is obstruction of an official proceeding. And that’s not specific to Congress. It’s serious. That carries up to 20 years in prison—although I always have to make clear that most people charged with that in these cases, especially if they have no criminal history, are facing nowhere near 20 years in prison. That’s just the maximum that you could get for an offense like this. From from there, the other common felony charge is for assaulting or interfering with law enforcement—

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People who pushed police officers.

It doesn’t even have to be assault. The account includes interfering. Some of these cases are people who got up in the face of police, who refused to leave in an aggressive manner when confronted by police. So it’s something of a catchall for confrontation with law enforcement.

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I think what’s important to note is that not everyone who is charged with participating in the riots that day is facing that felony count. It’s really, at this point, half and half: misdemeanor-only cases versus cases where that felony charge has been filed. So I think that’s really important to note, that it’s not as if courts looking at every single person who went inside the Capitol as rising to the level of a felony crime.

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Could you tell me, first off, how did prosecutors start focusing on Paul Hodgkins? When was he arrested, and how?

Paul Hodgkins was part of the early batch of arrests, which I think is common for a lot of the guys who made it onto the Senate floor—they were just easier to spot. Hodgkins had also sent a selfie of himself inside the Senate. And a friend of a friend recognized him and told the FBI, Hey, I know this guy. Then he was arrested and allowed to go home while his case was pending.

You were at Hodgkins’ sentencing this week. Can you describe how it all went down and what stood out to you?

Hodgkins was wearing a suit. His hair was pulled back.

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He looked really different than he does in the Jan. 6 videos, where his hair’s around his face.

He did, and we can say that that is purposeful, because his lawyer made a point of highlighting that. They provided the court with the selfie from the Senate floor, where he looks angry and is glowering and his hair is all around his face. And then his lawyer provided another selfie of him looking illuminated and more clean-cut and saying, this is Paul Hodgkins now. He’s a reformed man. He talked about getting more involved in church and his community, doing community service at a food bank and an animal shelter. So the physical presentation was purposeful.

Hodgkins read this statement where he emphasized, for instance, that he accepted that Biden is the president. Tell me a little bit about what he said and how he sounded to you as he read this statement.

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He was calm, contrite, clearly trying to show the judge he understood that what he had done was wrong. The act of saying I accept Joseph R. Biden is the president of the United States was meant to, I think, allay any concerns the court might have had that he might still pose a danger of doing something like this. But he didn’t disavow Trump. There have been some defendants who’ve said, I was duped by Trump, it was a lie, I can’t believe I supported him, it’s all Trump’s fault. Paul Hodgkins did not do that. He said that he went to support Trump. He didn’t say, “I no longer support Trump”—his was more of an “I accept reality” kind of speech. It seemed to help his case.

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This rioter named Anna Morgan-Lloyd similarly told the judge she was ashamed of what happened on Jan. 6. She called it a “savage display of violence.” But then she went on Fox News—

The next day.

—and basically said, I don’t think it was an insurrection, I didn’t see the violence, that wasn’t me. It was this kind of two-step of saying, “I’m horrified by this, but not really.”

I mean, whether Paul Hodgkins will decide to do a media tour later is anyone’s guess. I will say a big difference between those two cases is that Hodgkins is getting ready to surrender to the Federal Bureau of Prisons.

And Morgan-Lloyd was sentenced to probation.

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She’s not going to jail. So that really was the end of her case.

Hodgkins’ lawyer was arguing, Look at what happened with Morgan-Lloyd, my client deserves a similarly light sentence.

He argued that, and the judge made very clear he was not interested in that argument. The big difference is that Hodgkins was charged with a felony and Morgan-Lloyd was not.

I want to introduce the judge in this case: Randolph Moss.

Judge Randolph Moss was an Obama appointee—but he does not have a reputation as a liberal firebrand.

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It felt like, when I read your coverage of the sentencing, Moss was really trying to strike this balance, because he made the point multiple times that he had to be careful in his sentencing to make sure it reflected the facts of this case and not the wider context. Was that notable to you, too?

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It was. I think Moss was aware he was going to get a lot of coverage of this hearing, with it being the first felony sentencing. So there was the task of saying, Hodgkins can only be sentenced for the crime he pleaded guilty to. He cannot be sentenced on behalf of every single person who went into the Capitol and did whatever they did that day. But the judge also felt the need to, I think, express that he was aware Hodgkins was not acting in a vacuum—that no one who was there was acting in a vacuum.

The government was asking for more than a year in prison.

Right, for 18 months.

What did the judge give?

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Eight months.

Given all this, I wonder if, watching the sentencing play out in the way it did, you left feeling like, after there are hundreds more cases like this, it’s all going to add up to a coherent vision of what Jan. 6 meant to the country as a whole and how we’re going to move on from it.

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Who knows? It’s always hard to predict what will happen in court. I think, as we start to see more sentencing, assuming many more people plead guilty or are convicted at trial—that will make a record of the severity of what happened. If hundreds of people are spending months or years in prison, that sends a very strong message about the severity of what happened on Jan. 6. It’s a way of quantifying the seriousness of the offense, to say people are now spending years in prison because of what they did. These rioters will have gone through the criminal justice system. They will have been afforded the protections that are due, or are supposed to be due, to all criminal defendants. In the end, this is what happened.

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It’s notable to me, too, that I don’t think we’ve yet seen a charge against someone who’s accused of, for instance, laying out pipe bombs, which is quite serious. It’s notable that there are some parts of what happened on Jan. 6 that still seem very much like things we don’t understand and don’t have information on.

Absolutely. A huge unanswered question is what’s going on in the investigation into whoever was involved in setting bombs outside the headquarters of the DNC and the RNC. There’s been no update on that for quite a while. And no one has been charged who was involved at a higher level in organizing the rallies that day—

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Talking on radio, on their phones, things like that.

Right. We haven’t seen any top-level organizers being charged. And I think the other big thing to note is no one has been charged with sedition or seditious conspiracy, which was a crime that prosecutors said early on they were looking into. I think that would be a charge that goes more into the politics of the day and what the intent was in storming the Capitol and trying to stop Congress from certifying Joe Biden as the winner of the election. But they haven’t brought that charge against anyone so far.

You’ve made this really good point want to emphasize, which is that there are two camps of people who have been charged after Jan. 6. One camp is looking at this case and thinkin, “Oh, God, they have all this evidence, let me find a way to minimize the damage to myself as much as possible.” Another camp is the one that’s digging in and saying, “I’m going to try to get support from the right, and I’m not going to plead guilty.” Why is that important, to separate these defendants into these two categories?

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It’s meaningful at a practical level, because the defendants who were in that second camp … those cases are more likely to go to trial than to result in a plea deal. For instance, there’s a woman named Jenny Cudd who’s lodging some of these early challenges to the prosecution itself. She’s trying to make an appeal to the political side of this, trying to get support from conservatives. Cudd’s argued, first off, that the case shouldn’t be in D.C., that it should be moved to another venue because D.C. is very liberal and the jurors are supposedly going to be

naturally opposed to anyone who supported Trump. But these motions are very hard to win. It’s extremely hard to persuade a judge to move a case out of where the crime occurred. So it’s a high bar, but I think her case is one that would lead, I would expect, to other challenges to whatever the government is trying to do.

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Hodgkins’ sentencing seemed to be pretty mild. But I wonder if the tone and tenor will be different once you get to these cases where folks are digging in more, they’re not pleading guilty, they’re filing all sorts of things to try to move the case and defend themselves aggressively. That will be a very different thing to watch.

I mean, do not have to plead guilty just because there are Instagram or Facebook posts of them at the Capitol. There’s a growing number of defendants who are arguing the obstruction charge itself is wrongly brought and applied to the situation of Jan. 6. That’s a legal argument that could go on appeal. There are a lot of ways for people to contest these prosecutions and to try to use the courtroom as a vehicle to make any kind of broader political statement.

So cases like Hodgkins’ are the easy ones for the prosecution.

Yeah, I think that’s right.

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