United States v. McHugh
| Decision Date | 01 February 2022 |
| Docket Number | CRIMINAL ACTION 21-453 (JDB) |
| Parties | UNITED STATES OF AMERICA v. SEAN MICHAEL MCHUGH, Defendant. |
| Court | U.S. District Court — District of Columbia |
On January 6, 2021, a violent mob attacked the United States Capitol during a Joint Session of Congress, causing millions of dollars in damage, injuring approximately 140 law enforcement officers, and forcing members of Congress and the Vice President to evacuate for their safety. Defendant Sean McHugh is alleged to have been an active participant in the events of that day, and he has been charged by indictment with eight felonies and two misdemeanors related to his conduct at the Capitol. McHugh now moves to dismiss five of the counts against him on a variety of statutory and constitutional grounds. For the reasons explained below, and joining the conclusions of five other judges in this District who have decided nearly identical motions, the Court will deny McHugh's motion.
The Twelfth Amendment of the United States Constitution provides that, after the members of the Electoral College “meet in their respective states and vote by ballot for President and Vice-President, ” they “shall sign and certify [the results of their vote], and transmit [them] sealed to the seat of the government of the United States directed to the President of the Senate.” U.S. Const amend. XII. The President of the Senate (i.e., the Vice President) is then directed to, “in the presence of the Senate and House of Representatives, open all the certificates[, ] and the votes shall then be counted.” Id. In the Electoral Count Act of 1887 (“ECA”), [1] Congress provided greater structure for this procedure and set forth a process by which disputes regarding the electors' ballots would be decided by the Congress. Federal law thus provides that “Congress shall be in session on the sixth day of January succeeding every meeting of the electors” and that “[t]he Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, ” 3 U.S.C. § 15, for the purpose of counting the votes of the electoral college and “[declaring] the result ” id. § 16.
And so at 1:00 PM on January 6, 2021, Congress assembled in a joint session presided over by the Vice President in order to certify the Electoral College's election of Joseph Biden as the 46th President of the United States (the “January 6th Certification”). Then-President Donald Trump, who had lost the 2020 election to President-elect Biden, held a political rally that morning at the opposite end of the National Mall from the Capitol. At this rally, Trump and others reiterated their claims that the 2020 election was fraudulent or otherwise illegitimate. See Trump v. Thompson, 20 F.4th 10, 17-18 (D.C. Cir. 2021). Shortly after Trump's speech, in which he “announced to his supporters that ‘we're going to walk down Pennsylvania Avenue . . . to the Capitol, '” and urged the “crowd to ‘demand that Congress do the right thing and only count the electors who have been lawfully slated, '” id. at 18 (quoting Donald J. Trump, Rally on Electoral College Vote Certification, C-SPAN (Jan. 6, 2021), https://www.c-span.org/video/?507744-1/rally-electoral-college-vote-certification), a large crowd marched down the National Mall toward the United States Capitol, id.
At the Capitol, U.S. Capitol Police had established a security perimeter, setting up “permanent and temporary security barriers” and a “perimeter fence line” made up of metal bike racks. Statement of Facts [ECF No. 1-1] ¶¶ 2, 5. This perimeter was manned by Capitol Police officers and included signs clearly designating the area “closed.” Id. ¶ 5; accord Gov't's Resp. in Opp'n to Def.'s Mot. to Dismiss [ECF No. 42] (“Gov't Opp'n”) at 3. When the mob arrived at the Capitol, what started as a rally turned into a protest, which quickly devolved into a riot and then a violent attack on the United States Capitol. Participants assaulted police officers, breached first the perimeter fence line and then the Capitol building itself, and forced the assembled members of Congress and the Vice President to flee for their safety. See generally Trump, 20 F.4th at 18-19. All told, the riot caused millions of dollars in damage to the Capitol, and approximately 140 law enforcement officers were injured in the fighting-the January 6th riot was, in short, “the most significant assault on the Capitol since the War of 1812.” Id.
Defendant Sean McHugh is one of the more than 700 individuals charged with federal crimes for his conduct on January 6th. According to the allegations in the Superseding Indictment [ECF No. 39], the Statement of Facts, and the government's opposition brief, [2] McHugh traveled to D.C. on January 5, 2021 from his home in California. Gov't Opp'n at 4. He then attended President Trump's rally on the National Mall before walking with a large crowd towards the Capitol. Id. at 4-5. While on the Mall, McHugh recorded a video of himself in which he narrates:
McHugh reached the Capitol grounds by approximately 1:30 PM, when body worn camera footage captured him using a megaphone he had brought with him to shout obscenities at the officers manning the western fence line, accusing them of “protecting communists” and taunting them with comments like “I'd be shaking in your little shit boots too.” Statement of Facts ¶ 12; Gov't Opp'n at 6. McHugh also used his megaphone to exhort and direct other rioters, including encouraging them to engage in violent conduct. See Statement of Facts ¶¶ 14, 19. Upon seeing a group of rioters moving a metal sign toward one of the police barricades, he urged the group to before joining in the attempt to push the sign into the barricade and the officers standing behind it. Gov't Opp'n at 7-8; Statement of Facts ¶ 13.
McHugh personally engaged in additional violent conduct during the riot. At one point, McHugh scuffled with a uniformed police officer, apparently trying to wrest a metal barricade away from the officer. Statement of Facts ¶ 15. At another point, he sprayed a line of riot-gear-clad police officers with a yellowish substance from a handheld canister he kept in a holster on his right hip. See id. at 5-7; Gov't Opp'n at 9-10. This yellowish substance was later determined to be bear spray: McHugh allegedly texted an acquaintance that he “unloaded a whole can of bear spray on a line of cops, ” Gov't Opp'n at 11, and, after McHugh's arrest, law enforcement recovered a canister matching the one used against the officers, with a label featuring a drawing of a bear and the name “Frontiersman Bear Attack Deterrent, ” id. at 10. This label also warns that the spray is a “[h]azard to [h]umans” and could result in “irreversible eye damage if sprayed in the eye.” Id. at 11.
In the following months, federal investigators identified McHugh in several videos of his conduct posted on online, and he was arrested on May 27, 2021. See Arrest Warrant [ECF No. 5]. He has been detained since that time. See Min. Entry, June 25, 2021 (denying McHugh's appeal of his detention order and ordering that he be transported to the District of Columbia). On July 7, 2021, McHugh was indicted by a federal grand jury on ten counts, see Indictment [ECF No. 22], and the government then filed a Superseding Indictment dated November 10, 2021 making the same charges, see Superseding Indictment. McHugh is charged with two misdemeanor counts under 40 U.S.C. § 5104(e)(2)(D) and (F), Superseding Indictment at 5-6, as well as eight felonies: three counts of assaulting, resisting, or impeding federal officers in violation of 18 U.S.C. § 111(a) ();[3] one count of obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2); one count of civil disorder in violation of 18 U.S.C. § 231(a)(3); and three counts related to conduct on a restricted building or grounds under 18 U.S.C. § 1752. Superseding Indictment at 2-5.
McHugh now moves to dismiss five of the felony charges against him for failure to state an offense. See generally Def.'s Mot. to Dismiss Counts Two, Five, Six, Seven, and Eight of the Superseding Indictment [ECF No. 41] (“Def.'s Mot.”). He argues that Count Five, charging him with corruptly obstructing, influencing, and impeding an official proceeding in violation of 18 U.S.C. § 1512(c)(2), is improper because Congress's certification vote on January 6th was not an “official proceeding” for purposes of the statute and because the statute is unconstitutionally vague. See Def.'s Mot. at 3-17. He then makes a similar vagueness challenge, as well as a related overbreadth claim, as to Count Two, which charges him with “civil disorder” in violation of 18 U.S.C. § 231(a)(3). See id. at 17-23. Finally, he seeks to dismiss the indictment's three charges under 18 U.S.C. § 1752 (Counts Six, Seven, and Eight) on the grounds that (a) only the U.S. Secret Service (and not, as relevant here, the U.S. Capitol Police) can establish a “restricted building or grounds” under that statute and (b) the Vice President was not “temporarily visiting” the Capitol on January 6th, such that the Capitol was not a “restricted building or grounds” under § 1752(c)(1)(B). See id. at 23-28.
With the exception of McHugh's very last argument regarding the phrase “temporarily visiting, ” every one of these contentions has been heard and rejected by at least one judge in this District in the last several...
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