In Radical Affront To Civil Liberties, The Government Is Branding Non-Violent Jan. 6 Defendants "Terrorists"

Paul Hodgkins on January 6. Photo via Capitol Police

This week, the first felony sentence was handed down in relation to what’s popularly called the “insurrection” of January 6, 2021. Though he only pleaded guilty to a single count of “obstruction of an official proceeding,” defendant Paul Hodgkins — whose criminal act entailed milling around the Senate chamber for approximately 15 minutes — nonetheless found himself branded a “terrorist” in open court by the US Government. Per prosecutors’ own admission, Hodgkins committed no acts of physical violence, and wielded no weapons. He was also never formally accused of any “terrorist” offenses, at least in a way that the Government would actually have to prove beyond a reasonable doubt. Regardless, prosecutors have now introduced a theory in which it’s alleged that Hodgkins and other non-violent Jan. 6 defendants were operating within a supposed “context” of terrorism — and it’s this “context” that they’re citing to argue for more severe punishment.

Ultimately, Hodgkins was sentenced to eight months in prison — a long time to be confined to a cage, of course, but perhaps not the length of incarceration one would typically associate with a deadly act of “terrorism.” So there’s something incongruous about this newly concocted terrorism-designation approach. Here is how Special Assistant US Attorney Mona Sedky rolled out her new “terrorism” theory at Hodgkins’ sentencing hearing on July 19:

Read that carefully. The Government admits that Hodgkins’ actual conduct does not meet any legally cognizable definition of “terrorism,” but nonetheless argues that Hodgkins was “part” of a domestic terrorism event — i.e., partook in the commission of a terrorist attack — and is therefore effectively a terrorist! They’re more or less saying, “We can’t meet the legal burden to actually prove that he’s guilty of terrorism, so we’re just going to kind of vaguely assert as much in this slippery, unfalsifiable way.” Expanding the applicability of “terrorism” in such a manner is self-evidently menacing to civil liberties — it’s essentially the Government claiming the ability to accuse you of terrorism without ever having to clear the due process hurdles of legally establishing your guilt. Sedky added:

“Framing”? “Context”? What? When did “domestic terrorism” become some kind of interpretive literary principle? These are weasel-words, the vagueness of which enable the Government to level one of the most extraordinary accusations it could possibly level against a citizen — that he is a terrorist — without having to subject that designation to meaningfully adversarial scrutiny. It’s all the more galling, because again, Hodgkins was not even alleged to have committed any physical violence. “The Government nonetheless recognizes that Hodgkins did not personally engage in or espouse violence or property destruction,” wrote Sedky in a sentencing memo. But in the “context” of Jan. 6 — the hyper-charged, seismically hyperbolic political climate that these proceedings are taking place within — the “symbolism” of the affair has taken primacy.

Judge Randolph D. Moss of the DC District Court (a Democratic appointee, if anyone’s keeping score) was particularly aggrieved that Hodgkins had carried a “TRUMP 2020” flag when he meandered onto the Senate floor, as opposed to an American flag. Moss opined that this choice of flags was evidence of Hodgkins “declaring his loyalty to a single individual over the nation.” That’s quite a feat of mind-reading — who knew that sporting a presidential candidate’s campaign paraphernalia presumptively indicates “disloyalty” to the US? But the Judge confessed to being extremely fixated on “the symbolism” of Hodgkins’ act, which allegedly “captured the threat to democracy that we all witnessed that day.” As though Hodgkins banded together with the shirtless yodeling Shaman guy to land a death blow against “democracy” — whatever that means — by temporarily interrupting a ceremonial legislative session.

It gets creepier. While the Government conceded that Hodgkins engaged in no violent conduct, wielded no weapons, and caused no physical injury, they turned around and invented a new type of “injury” he allegedly inflicted in order to demand a harsher prison sentence. This “injury” conceived by the Government appears to be a form of metaphysical injury, or perhaps some bizarre political injury? Sedky again:

“Imperiling democracy”? Given the laughable non-specificity of what the hell it even means to “imperil democracy,” it shouldn’t take too much imagination to envision how widely this new “injury” criteria could be applied — as dictated by the whims of whatever prosecutor wants to appoint themselves a noble Democracy Defender. Do leftists, who’ve been almost entirely silent about the extremely foreboding implications of the Jan. 6 prosecutions, really not understand how easily the same logic could be marshalled against their own activist comrades?

Prosecutors’ wild journey of “injury invention” didn’t stop there. Sedky went on to posit that Hodgkins was culpable for unspecified “emotional injury” — a thematic continuation of the months-long pity-party that Jan. 6 has allowed politicians and journalists to throw for themselves. Sedky again:

“He proudly posed for selfies and texted those to his friends,” Sedky gravely added. Has there ever been a supposed terrorist insurrection in which “selfies” played such an integral role? At this point, the very concept of “terrorism” might have to be fundamentally re-defined to emphasize the apparent centrality of the existential “selfie” threat. “You walked among the desks on the Senate floor and took selfies,” Judge Moss later reprimanded Hodgkins. This selfie-taking activity does seem to raise the question of whether Hodgkins and other Jan. 6 defendants had consciousness of guilt — after all, the Capitol is ordinarily a publicly accessible building — but apparently that’s neither here nor there.

Over and over it was claimed by Sedky that while Hodgkins “did not participate in the physical violence or the destruction, he surely participated in the grave danger to our democracy.” Or in other words, Hodgkins was deserving of a 18-month prison sentence in the Government’s eyes because of the symbolic affront he committed. And that’s why the nonstop deluge of melodramatically overblown rhetoric around Jan. 6 — “insurrection,” “attempted coup,” “domestic terror,” “overturning the election,” etc. — has been such a crucial ingredient in federal prosecutors’ drive to obtain maximal punishment for the alleged offenders. They are specifically citing these symbolism-based grievances to demand harsh incarceration terms even for defendants whom they admit engaged in no physical violence. The “emotional injury” they’re invoking is supposedly the country’s emotional injury, or something, and Hodgkins must pay the therapy bill.

In the sentencing memo submitted by the Government, Sedky affirms “the need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was.” But where does that “certainty” derive from, exactly? As yet, none of the Jan. 6 defendants have been formally accused of any “terrorism”-related offenses, and there are plenty on the books for prosecutors to choose from if they so desire. The Government instead has been relegated to vaguely insinuating the existence of a terrorism “context,” which must be a challenging task given that so many defendants have been charged with the supposedly “terroristic” crime of “Parading, Demonstrating, or Picketing in any of the Capitol Buildings.” What’s next, terrorist jaywalking?

During the hearing this week, Hodgkins’ defense attorney Patrick Leduc objected to the “domestic terrorism” innuendos, and retorted that the Government was attempting to “gas-light” the public. “I went as close to going thermonuclear as one might go,” Leduc told me afterwards in relation to the whole “terrorism” business. 

But the go-ahead had already been given by FBI Director Chris Wray, who went before Congress in March and declared that Jan. 6 was in fact “domestic terrorism.” Which again, is merely an assertion. Clearly the Government is trying to have it both ways; it seeks the symbolic retribution of punishing the “terrorists” who desecrated what Adam Schiff has pompously called the “temple of democracy,” without having to go through the substantial inconvenience of formally charging them with terrorism-related crimes. (Sedky also denounced Hodgkins for “truly flouting lawmakers,” because as we all know lawmakers must never be “flouted”!)

What the Government ultimately did was accuse Hodgkins of somehow being associationally implicated in terrorism — because his actions were “calculated to influence or affect the conduct of Government by intimidation or coercion,” which is one element of the relevant Federal Terrorism Statute. But they didn’t formally charge him with violating that statute, which makes sense because other elements of the statute include such specified activities as hijacking airplanes, waging biological warfare, launching assassinations, and so forth. Hodgkins has only been convicted of “obstruction.” But now, under the Government’s new theory, all manner of relatively mundane crime could hypothetically be asserted to have taken place within the “context of domestic terrorism,” if the extrinsic political conditions are ripe enough.

This prosecutorial tactic demonstrates that the Government has reserved the right to explicitly brand all participants in the Jan. 6 episode “terrorists,” regardless of the severity of the actual wrongdoing they are accused of committing, which as I’ve previously documented can in some instances amount to as little as 13 minutes — literally — of non-violent wandering around in a building that’s typically open to the public. 

And as far as the FBI Director, who seems to have set this “terrorism” bonanza in motion, Hodgkins defense attorney Leduc told me: “If Chris Wray were standing in front of me, I would say, are you an idiot?”

Does any of this cause the slightest concern for left/liberals who purport to care about civil liberties, or are they so suffocated by their seething disdain for the “insurrectionists” that they can’t be bothered to notice what’s happening? As Saagar Enjeti recently pointed out, essentially no one in the Dem-aligned media orbit seems to give a flying crap about this ongoing foray by the Federal Government to re-define and punish “terrorism.” To the extent that any complaints have been registered — and recall that law enforcement officials tout the Jan. 6 probe as the most far-reaching prosecutorial initiative in US history — pundits are foaming with fury that the punishments are not harsh enough.

After the Hodgkins sentence was issued, right on cue, Righteous Journos who no doubt ordinarily see themselves as on the side of grace and mercy — and against the ghastly punitive excesses of the US criminal justice system — frothed with rage at what they denounced as an unacceptably lenient slap on the wrist. Suddenly for these pioneers of “reform,” eight months in federal prison is a walk in the park and a lifetime “terrorist” branding is no biggie.

Joy-Ann (Pro-Democracy) Reid 😷 @JoyAnnReid

Just 8 months for participating in an act of domestic terrorism?? A man is facing 20 years in prison in Texas for voting a couple of months before the end of his parole... we really do have two systems of justice in this country: one for white Americans, another for nonwhites.

Joyce Alene @JoyceWhiteVance

Jan 6 insurgent sentence to 8 months, despite gov't's 18 month recommendation. Probation recommended 15. Because one of the goals of sentencing is uniformity, this could well lead to lower sentences across the board. https://t.co/NpDD5ucY9z

Elie Mystal @ElieNYC

White privilege is a card that is never rejected

Zoe Tillman @ZoeTillman

NOW: A judge has sentenced Capitol rioter Paul Hodgkins to 8 months in prison — it's the first sentencing in the Jan. 6 cases for a felony plea. It's below the 18 mos requested by the govt and the estimated range of 15-21 mos; it's above what Hodgkins requested, which was no time

It’s always darkly amusing when “Influencers” who clearly have no familiarity with the US prison system act like months of incarceration is just a breeze. But per usual, the same pundits who flirt with police and/or prison abolitionist rhetoric are oblivious to the contradictions inherent in their simultaneous craving for extreme carceral punishment.

Also worth noting is that the strategy of Hodgkins’ defense attorney, Leduc, was perhaps a bit… questionable. Leduc’s sentencing memo submitted to the Court is filled with miscellaneous references to Abraham Lincoln, “cancel culture,” and Bible verses, and during the hearing this week he went on a tangent about Japanese internment in World War II, as well as Peter denying Christ. Whether the Court found this style of argumentation persuasive, for instance, is open to debate:

Also see the following sympathy-generating maneuver that Leduc attempted:

In a moment of unusual candor, Leduc freely told me that Hodgkins is unsatisfied with the quality of his legal representation — meaning he thinks Leduc screwed up — while Leduc contends that subsequent Jan. 6 felony defendants are destined for much harsher sentences than Hodgkins received. According to Leduc, he was able to get his client a much more favorable sentence because he expedited the plea agreement process. “But yeah, my guy had unrealistic expectations that time will prove when he starts to see all these other cases go down,” Leduc told me. “He’s going to realize how blessed he was. He wanted to stay out of jail. He’s afraid he’s losing his job. He’s losing his home. He’s angry. He thinks that I could have said things differently and better. You know, guess what? I’m not perfect either. I’m not the second coming of F. Lee Bailey. Or Johnnie Cochran. I didn’t have a glove — if the glove don’t fit, you must acquit.”

Yeah… what? Your guess is as good as mine.

To sum up: the US Government, as demonstrated by this week’s precedent-setting sentencing argument, is currently in the process of invoking an expanded conception of “domestic terrorism” to demand lengthier prison sentences for Jan. 6 defendants — including defendants whom the Government flatly admits engaged in no physical violence. (In place of physical injury, they’re conveniently testing out these new “injury to democracy” and “emotional injury” standards, the latter of which aligns nicely with the newfound “trauma” rhetoric pioneered by cultural elites as a self-serving, accountability-skirting tactic.) Meanwhile, the main reaction of the US media is reflexive screeching and whining that the Jan. 6 defendants aren’t being punished severely enough — civil liberties be damned. (Oh and by the way, another defense attorney alleges that numerous Jan. 6 defendants who’ve been jailed for over six months are being “psychologically, emotionally, and physically tortured on a regular basis.”) But, you know, whatever. Seems fine.

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I’ll be doing a Rokfin livestream on this topic, Sunday July 25 at 12pm EST. Tune in!