Punishing the Capitol Rioters

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S1: For the last six months, Zoe Tillman has been keeping a growing list of all the people facing charges for storming the Capitol back in January, you said there are 535 people, maybe more, who have been charged at this point.

S2: If more, as of today, my list is up to close to 550. So every day we get new cases of get unsealed.

S1: Zoe reports for BuzzFeed says these cases fall into a couple of categories there, the people facing misdemeanors just for being there, and then there are the people facing felonies. This latter group, some of these folks hurt police officers. Others simply rifled through lawmakers desks on the Senate floor. All of this was, of course, documented in the stand up for our God given unalienable rights. This is from a video a New Yorker writer took on January six. It shows Rioters who are unsure of exactly what to do with themselves once they breach the capital’s inner sanctum. A few minutes in, you 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. Thank you for allowing us to talk about the progress of the traitors

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S2: within our government.

S3: We love you. And Holy Name, we pray.

S2: He was walking around with a flag he salutes at one point because folks are reciting prayers and demonstrating from the dais and he seemed to be in support of that.

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S1: 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, though, what he did still seems to be a matter of some dispute.

S2: He says that he was not there to cause any trouble at one point. He says he went up to a law enforcement officer and said that he was sorry they had to deal with this.

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S1: 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 January 6th. So why him?

S2: It’s this guy first, because he wanted to be first.

S1: He wanted to be first because he was hoping for a reduced sentence by pleading out early. Hodgkin’s could set the sentencing standard, even hope for a more lenient standard since his punishment wasn’t being measured against others.

S2: So 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.

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S1: I’ve read some other news outlets characterizing this plea and sentencing as a possible indicator of how hundreds of other capital Rioters cases could go, because there are more than 500 people who’ve been charged at this point. Do you think this case has that kind of predictive power?

S2: It absolutely does. It is now sort of a line in the sand for the felony cases going forward.

S1: Today on the show, what can you learn about January six and how it’s being written into the American story from this very first felony conviction? I’m Mary Harris. You’re listening to what next? Stick around. Let’s just talk a little bit about how Paul Hodgkins case stacks up against the other felony cases and other cases generally that the DOJ is moving forward with when it comes to January 6th,

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S2: pretty much everyone is facing the same four misdemeanor counts and it’s for illegally going into the capital, disruptive conduct, disorderly conduct and parading, picketing, demonstrating in a Capitol building. And these are all misdemeanors, maximum penalty of between a year and six months parading.

S1: I never knew that was something I could be charged with.

S2: Yeah, you cannot parade inside a Capitol building that is a misdemeanor crime. So a lot of times when there have been other 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.

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S1: What about the felony charges?

S2: So the most common felony is the one that Paul Hodgkins pleaded guilty to, which is obstruction of an official proceeding. And that’s not specific to Congress. That’s not specific to Congress certifying the election. It’s a felony. It’s serious security, 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 Congress has that you could get for an offense like this. And then from there, the other really common felony or a more serious charge is for assaulting or interfering with law enforcement

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S1: people who literally pushed police officers.

S2: It doesn’t even have to be assault. The account includes interfering. So some of these cases are people who got up in the face of police who refuse to leave in an aggressive manner when confronted with police. So it is something of a catch all for just a confrontation with law enforcement.

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S1: Hmm. Some folks in conservative media are suggesting prosecutors are being overzealous in the cases here. Is that a valid argument or as you see them play out, are you seeing something different emerge?

S2: 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 are misdemeanor only cases versus cases where that felony charge has been filed. So I think that’s really important to note at the start. It’s not as if they’re looking at every single person who went inside as being worth or rising to the level of a felony crime.

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S1: Well, it’s notable to me, too, that I don’t think that we’ve yet seen a charge against someone who’s accused of, for instance, laying out pipe bombs, which is quite serious. So, well, at the same time, the focus is on serious folks there. It’s notable that there are some parts of what happened on January 6th that still seem very much like something we don’t understand and we don’t have we don’t have information on

S2: only I mean, a huge unanswered question is what is 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. No one has been charged who was sort of involved at a higher level in organizing the rallies that day,

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S1: talking on radio on their phones and things like

S2: that. Right, 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 had said early on they were looking into and I think would would be a charge that goes more to the sort of politics of the day and the what the intent was in storming the Capitol and trying to stop Congress from certifying Joe Biden as the winner of the election. And they haven’t brought that charge against anyone so far.

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S1: You’ve made this really good point that I just want to emphasize, which is that there are two camps of people who have been charged after January 6th and in one camp, which is sort of looking at this case and thinking like, oh, God, they have all this evidence. Let me find a way to minimize the damage as much as possible to myself. And another camp is the camp that’s digging in and saying, I’m going to try to get support from the right and I’m going to you know, I’m not going to plead guilty. Why is that important to kind of separate these defendants into these two categories? How is that meaningful to you

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S2: or is meaningful on a practical level? Because the defendants who are in that second camp I’m going to dig in, are the ones where we’re going to see challenges to the charges they’re facing the venue. I would expect that these cases, those cases are more likely to go to trial than to result in a plea deal. So, for instance, there’s a woman named Jenny covid. She is lodging some of these early challenges to the prosecution itself. So, for instance, she’s trying to make an appeal to the political side of this, to your point, trying to get support from conservatives. I can tell you that I’m going to lean all the way up to this all all the way into this, because there’s only two options. One, counsel culture hits you. It’s either lock it all up, throw away the key and

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S1: move to another state,

S2: try to create a new life, or it’s just stand up and fight it. So she’s argued, first off, that the case shouldn’t be in D.C., that if she moved to another venue because D.C. is very liberal, the jurors here are going to be naturally opposed to anyone who supported Trump. And these motions are very hard to win. It’s extremely hard to convince a judge to move the case out of where the crime occurred. So it’s it’s a high bar, but I think it’s it’s her case is one where I would expect to see other challenges to whatever the government is trying to do.

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S1: When we get back, how this week’s case, the case against Paul Hodgkins lays some groundwork for the hundreds of defendants to come. Let’s talk about Paul Hodgkins, because part of the reason I wanted to focus it on his case is that we really are still grappling with what the January 6th capital riot was all about and. How to deal with it and how to move forward and these cases, these individual cases, it strikes me that it’s a place where this discussion is happening and there are tangible results like we’re doing something. So I think it’s useful to focus in and just think about what happened here and what it means about how we’re all making sense of January 6th. So could you just tell me, first off, how did prosecutors start focusing on Paul Hodgkins? Like when was he arrested, how

S2: Plotkin’s was part of the early batch of arrests, which I think is common of a lot of the guys who made it onto the Senate floor. They were just easier to spot. There was a tipster who recognized him. And Paul 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. And he was arrested. And then he was granted he was allowed to go home while his case was pending. So he has been back at home in Florida. He’s been working while his case went forward.

S1: You were at Hodgkins sentencing this week. Can you describe how it all went down and what stood out to you?

S2: So Hodgkins was wearing a suit. His hair was pulled back.

S1: He looked really different than he does in the videos from that day where his hair is around his face in this presentation, you know, it’s just quite different.

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S2: It is. And we can say that that is purposeful because his lawyer made a point of highlighting that he provided the court with the selfie from the Senate floor where he looks sort of angry and is glowering and his hair is all around his face. And then his lawyer provided another selfie of him looking sort of illuminated and more clean cut and saying, you know, this is Paul Hodgkins now. He’s a reformed man. He he talked about getting more involved in church and his community, doing community service at a food bank and an animal shelter. So the presentation physically was was purposeful.

S1: Yeah. Paul Hodgins read this statement where, you know, 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.

S2: He, you know, was calm, contrite, clearly trying to show the judge that he understood what he had done was wrong. You know, the act of saying I accept that Joseph R. Biden is the president of the United States was meant to, I think, allay any concerns the court might have that he was going to go back out tomorrow and still be a denier, that the election was legitimate and might still pose a danger of doing something like this. Again, he didn’t disavow Trump. I would note he isn’t a defendant. There have been some defendants who have said, you know, I now realize I was duped by Trump. It was a lie. I can’t believe I supported him. It’s all it’s Trump’s fault. While Hodgkins did not do that, he said that he went to support Trump. He didn’t say, I no longer support Trump, that it was more of a I accept reality kind of speech. And the judge seemed to appreciate that and that it helped his case.

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S1: I mean, to me, this statement sort of hanging over it and this sentencing was one of the last sentencings for January 6th supporta the sentencing of this woman and a Morgan Lloyd, because similarly, she gave a statement where, you know, she told the judge she was ashamed of what happened on January six. She called a savage display of violence. But then she went on Fox News thereafter, not long after

S2: the next day

S1: and basically said, I don’t think it was an insurrection. And, you know, I didn’t see the violence. That wasn’t me.

S2: Nobody was breaking anything. And it was commonplace that people were actually walking out of the Capitol building that worked there, walked right past us, and they had no fear on their face at all when they call it an insurrection.

S1: What do you say?

S2: I can only talk about the area I was in, and I don’t believe it.

S1: So it was this kind of two step of saying, you know, I’m horrified by this, but then at the same time, not really.

S2: 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 Paul Hodgkins is getting ready to surrender to the Federal Bureau of Prisons in a short time.

S1: And a Morgan lawyer was sentenced to probation

S2: and a Morgan Lloyd got probation. She is not going to jail. So that really was the end of her case.

S1: But Paul Hodgkins lawyer was arguing that, you know, look back at what happened with Anna Morgan. Lloyd, my client deserves a similarly light sentence.

S2: He argued that and the judge made very clear that he was not interested in that argument. Judge said big difference is that Paul Hutchins was charged with a felony and an American, Lloyd, was not.

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S1: I want to introduce the judge in this case. His name is Randolph Moss. He was appointed in 2014, is that right?

S2: Yeah. So I think to note about the judge in this case, Judge Moss, he was an Obama appointee but does not have a reputation as a liberal firebrand.

S1: It felt like when I read your coverage of the sentencing, Judge Moss was really trying to strike this balance because he made this 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?

S2: Was I think that Judge Moss was aware that he was going to get a lot of coverage of this hearing as being the first felony sentencing. And, you know, it was the task of of saying Paul 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 capital and did whatever they did that day. But the judge also had to I think four felt a need to express that. He was aware that Hodgkins was not acting in a vacuum and no one who was there was acting in a vacuum. The fact that everyone seemed angry about the sentence, sometimes I think judges see that as a sign that they did the right thing. But if liberals are very upset that it was too low and conservatives are upset that he had any prison time, then that probably means he struck a good balance somewhere in the middle.

S1: Yeah, the government was asking for more than a year in prison, right?

S2: They were asking for 18 months.

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S1: What did the judge give?

S2: The judge gave him eight months.

S1: 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 going to add up to a coherent vision of what January 6th meant to the country as a whole and how we’re going to move on from it.

S2: Who knows? It’s always hard to predict what will happen in court. I think that as we start to see more sentencing, assuming many more people plead guilty or convicted at trial, I think that will make a record of the severity of what happened as hundreds of people are spending months or years in prison. That sends a very strong message about the severity of what happened on January six. 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. It’s harder to save. It’s for tourists because they they will have gone through the criminal justice system. They will have been afforded the protections that are due or supposed to be due to all criminal defendants. And in the end, this is what happened. So I think assuming that happens, that does create a record, a way of demonstrating how serious it was, assuming many more people are sentenced to prison. I think, yes, it does. It does become a way of of establishing a reality of just how how serious and violent January six was.

S1: Yes, interesting to me, this sentencing seemed to be, you know, pretty mild. The judge was very much in control of the courtroom, 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, you know, try to move the case and defend themselves aggressively. And that will be just a very different thing to watch.

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S2: It will. And and it is their right to do that. They 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 that the obstruction charge itself is is wrongly brought and applied to the situation of January 6th. And that’s a legal argument that could go up on appeal. If they lose, it could they could kick that up as if they’re convicted as a reason to reverse a conviction. So there are a lot of ways for people to contest these prosecutions and to use the courtroom or try to use the courtroom as a vehicle to make any kind of broader political statement. So there’s just a lot that can happen in a criminal case that’s really hard to predict.

S1: So these are the easy cases first for the prosecution. I think that’s right. Zoe Tillman, thank you so much for joining me.

S2: Thanks for having me on.

S1: Zoe Tillman is a senior legal reporter with BuzzFeed News. And that’s the show. Before we go, though, I have a quick question. We like to ask you guys what you’re up to every now and again. So we get a little perspective around here right now with the Delta variant flying around, we’re kind of curious how your lives are changing. Masks are coming off and going back on. So how has this in between time impacted your life or are you finally doing something you missed out on? Or are you avoiding it because you just don’t know what’s safe? Are you still confused about what you can and can’t be doing right now? Leave us a voicemail at two zero two eight eight eight two five eight or drop us a line you can find us at what next at Slate Dotcom. What Next is produced by Daniel Hewitt, Davis, Landolina, Schwartz, Mary Wilson and Carmel Delshad. We are led by Alison Benedict and Alicia Montgomery. And I’m Mary Harris. You can go track me down on Twitter. I’m at Mary desk. Meantime, I’ll get you back in this feed tomorrow.