UPDATED: Tracking the Capitol Riot Cases

The Federal Docket

April 28, 2021

June 14, 2022 Update

The Associated Press released a comprehensive report of the kinds of sentences that have been imposed thus far in the 800+ criminal cases brought against defendants who participated in the January 6 Capitol Riots. The report includes charts and other demonstratives to illustrate the different approaches taken by judges. For example, one judge in particular, Judge Tanya Chutkan, has imposed prison time on several defendants even when prosecutors did not seek prison time. Most judges, however, have imposed sentences lower than those requested by the Government.

Almost 200 defendants have been sentenced to date. the report discusses the philosophical differences that judges have regarding the nature of these prosecutions, as well as their differences in sentencing. Trump-appointed Judge McFadden, for example, has criticized the Department of Justice for treating insurrectionist defendants more leniently than protestors or rioters during the George Floyd protests.

The report also includes data regarding how many defendants were ordered to pay restitution, how many received probation, how many received home confinement or community service, and other types of punishment. The report has pictures demonstrating the timeline and strategy of many of the defendants who participated in the Capitol Riots.

January 13, 2022 Update

The Government has continued its investigations and prosecutions for defendants charged for their participation in the Capitol Riots a year ago, albeit at a pace that many criticize as too slow.

A year after the riots, the Washington Post reports that about a quarter of the Capitol Riot cases have resulted in guilty plea. About 90% of those pleas were for misdemeanor offenses, as “prosecutors so far have focused on closing less serious cases to marshal resources for more complex trials ahead. Prosecutors have not been seeking sentencing enhancements based on “domestic terrorism.” Notably, very few of the January 6 defendants have prior criminal records.

Those “more complex” cases include cases against individuals who attacked the police and individuals who are charged with “conspiring to stop the vote count.” Today, the DOJ announced the beginning of another type of “more complex” case –the Government has charged Stewart Rhodes, “the founder and leader of the far-right Oath Keepers militia group,” and 10 others with “seditious conspiracy.” As discussed in another one of our blog posts, seditious conspiracy occurs when two or more people in the U.S. “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” The possible sentences include up to 20 years in prison.

In this case, the Government is charging the defendants with conspiracy to “prevent, hinder, or delay the execution of any law of the United States” by force. The DOJ press release states that several of these individuals were already facing charges relating to the riots, but this case involves allegations that the individuals had a detailed plan to come to Washington D.C. with guns, paramilitary gear, and other equipment and breach and take control of the Capitol grounds to prevent certification of the electoral vote.

As of January 11, 2022, only about 10% of the charged defendants had been sentenced, or roughly 70 defendants out of 725, and the longest sentence so far is 63 months, imposed on Robert Palmer of Florida who pleaded guilty to assaulting a law enforcement officer with a fire extinguisher, plank, and a pole. According to the Post, of the 74 people sentenced a year later, 35 have received jail or prison time, 14 have been sentenced to house arrest, and 25 received probation.

November 17, 2021 Update

On November 10, 2021, Scott Fairlamb received the harshest prison sentence imposed thus far in the “Capitol Breach Cases.” As reported by Politico, Mr. Fairlamb received 41 months in prison. What’s significant about his case is that, unlike the other defendants sentenced so far, Mr. Fairlamb pleaded guilty to assaulting a Capitol Hill police officer and appears to be the first person sentenced on such charges. Notably, the judge who sentenced him predicted that others who assaulted police would face even harsher sentences.

A week later, on November 17, 2021, Jacob Chansley, who became known as the “QAnon Shaman” after pictures were taken of him standing in the Senate well shirtless and wearing a vikings helmet, also received 41 months in prison. He was charged with obstructing the certification process. While Chansley did not attack police officers, he was carrying an American flag on a speared flagpole.

Previously, 14 months in prison was the longest sentence imposed, in a case where the defendant explicitly threatened elected officials on social media.

The Department of Justice has set up a spreadsheet listing all of the “Capitol Breach Cases.” The list includes the names, charges, case documents, arrest locations, and case statuses for over 400 criminal defendants charged in connection with the breach. Click here to read the list.

October 19, 2021 Update

Since our last update, there have been some significant developments in the Capitol Riot cases brought by federal prosecutors against individuals who stormed the U.S. Capitol on January 6, 2021. At the time of our last update, the longest prison sentenced imposed in these cases was 8 months for Paul Hodgkins, and that is still the longest sentence imposed. As of the first week of October, at least 12 individuals have pleaded guilty and been sentenced. While several have received probation, many are receiving sentences of 45 days or several months in prison. There will likely be longer prison sentences imposed as individuals who are charged with violent conduct begin to plead guilty or go to trial.

The Wall Street Journal recently covered what appear to be significant discrepancies in the sentences imposed on Capitol Riot defendants, often based on who the sentencing judge is. In some cases, these judges are sentencing individuals to harsher sentences than advocated for by the Government and the defense. In others, judges are being more lenient. In at least a few cases, judges appear to be motivated by politics—in one highly publicized statement, Trump-appointed Judge Trevor McFadden suggested during a sentencing hearing that federal prosecutors in the Capitol Riot cases should have taken more aggressive approach against people who participated in the George Floyd protests in 2020.

Judge McFadden stated that “the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city.” This remark prompted significant pushback from other judges on the D.C. bench, who distinguished the insurrection on January 6 from the protests and riots in 2020, pointed out that January 6 defendants have actually been treated more gently in several aspects, such as being released on bond, and that the federal government did in fact launch many prosecutions against protestors in 2020. In fact, the Trump administration brought over 300 cases against BLM protestors as part of an effort to disrupt their movement.

Aside from the emerging disparities in sentences imposed in these cases, there has been another significant development. Last week, Buzzfeed and other media outlets reported that Judge Royce Lamberth held D.C. jail officials in civil contempt for failing to follow a court order to produce a defendant’s records. The judge also urged the Department of Justice to investigate whether jail officials are violating the civil rights of defendants charged in Capitol Riot cases.

The contempt order came after jail officials failed to turn over records relating to a defendant’s hand injury, which had gone untreated for months. Several defense attorneys in the Capitol Right cases have complained about the conditions facing their clients in the D.C. jail. At least 45 individuals facing charges related to the Capitol Riot are being held without bond at the D.C. jail.

August 17, 2021 Update

As detailed by CNN, several individuals charged with committing crimes in connection with the January 6 insurrection have been trying to resolve their cases with the government through plea agreements, often allowing them to plead to a lesser charge or obtain a lower sentence. Once these defendant’s get to court and are asked to accept responsibility and plead guilty, however, many of them have been unable to do so. Boyd Camper, for example, attempted to plead guilty but was prohibited from doing so by the judge when he objected to the Government’s characterization that he had entered the Capitol “unlawfully.”

The CNN article digs into what many judges and prosecutors are looking for in cases where the defendant is trying to negotiate a more favorable outcome–“contrition.” Camper was later able to plead guilty, though he still argued at the plea hearing that officers did not meaningfully try to stop him and others from entering the capitol. Other individuals have almost had their plea agreements pulled or the judge postpone their plea hearings.

According to CNN, the DOJ has said that “evidence of remorse or contrition is one key to getting a favorable recommendation.” The longest sentence, as of this writing, appears to be the 8-month sentence imposed in Paul Hodgkin’s case, but that will likely change with the prosecutions of individuals who engaged in violence at the capitol.

July 19, 2021 Update

On July 19, 2021, Paul Hodgkins became the first individual sentenced to prison for their participation in the Capitol Hill Riots on January 6, 2021. Mr. Hodgkins was sentenced to 8 months in prison, a compromise between the defendant’s request for no incarceration and the prosecutors’ request for over a year. Last month, Anna Morgan-Lloyd was sentenced to 36 months of probation for her role in entering the Capitol and walking around its halls.

Unlike Ms. Morgan-Lloyd, Mr. Hodgkins made his way to the Senate chamber. As reported by Politico, prosecutors are only offering misdemeanor pleas to individuals who did not make it into the Senate chamber or engage in violent conduct. Mr. Hodgkins did not engage in violence, but he made it onto the Senate floor, as pictured below.

Paul Hodgkins holds a Trump flag and stands in the well of the U.S. Senate floor during the Jan. 6 Capitol riot.
Picture from the AP

July 16, 2021 Update

Since our last post on the status of the pending criminal cases stemming from the January 6, 2021 riot at the U.S. Capitol, the U.S. Attorney’s Office in D.C. has secured 11 total convictions and 1 sentence, with several additional sentencing hearings set.

Last month, Anna Morgan-Lloyd was sentenced to 36 months (3 years) of probation for her role in the events. Ms. Morgan-Lloyd had posted on social media about her and her friend being among the first 50 people who “stormed the capital building.” There were several other posts and pictures taken within the Capitol that showed Ms. Morgan-Lloyd was in the middle of the action. Several other defendants have pleaded guilty and are awaiting sentencing, with several scheduled in July and August.

April 28, 2021 Update

Today, a jury sitting in the Eastern District of New York found Brendan Hunt guilty of threatening to assault or murder a U.S. official, a federal crime punishable by up to 10 years in prison under 18 U.S.C. 115. The jury deliberated for three hours after hearing evidence at trial that included Hunt’s facebook posts, youtube videos, and trial testimony, which called for violence against elected officials after a large number of former President Trump’s supporters stormed the Capitol to stop the certification of the election.

The videos and posts reportedly included a video titled “Kill Your Senators,” posted after the January 6 insurrection, where Hunt called for protestors to return to the Capitol with guns. In a previous Facebook post, Hunt identified certain elected officials as “high value targets” who should be killed by firing squad. His previous posts also contained anti-Semitic and anti-immigrant rhetoric. Hunt testified in his own defense, arguing that these posts were made in jest and that he did not have the intent of carrying through with anything. His attorney argued that holding or expressing racist or offensive views is not akin to making true threats. Jurors interviewed after the trial indicated they were troubled by the content of Hunt’s views and beliefs. The case will likely go up on appeal to the Second Circuit and will likely involve First Amendment claims.

The conviction comes a week after the feds obtained their first guilty plea relating to the January 6 insurrection. On April 16, Jon Schaffer became their first after he pleaded guilty to a two-count information charging him with obstruction of an official proceeding under 18 USC 1512(c) and entering a restricted building or grounds with a dangerous weapon under 18 USC 1752. Schaffer was, by his own admission, a “founding lifetime member” of the Oath Keepers, a group that was heavily involved in organizing at the Capitol, and he was accused of spraying police officers with bear spray.

Notably, Schaffer has agreed to cooperate with the Government in exchange for a potential sentence reduction, and the DOJ is reportedly considering placing him in the witness protection program. Some observers believe he may assist the feds in a larger case brought against a group of Oath Keepers and associates.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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