Sacramento-area man charged in Jan. 6 Capitol riot says his actions were free speech

Lawyers for Sean McHugh, an Auburn man who faces the most serious charges among Sacramento-area defendants in the Jan. 6 insurrection at the U.S. Capitol, are asking for half the charges to be thrown out on the grounds that he never entered the Capitol building and was only exercising his free speech rights.

McHugh, who faces eight felony and two misdemeanor counts that include assaulting or resisting officers, obstructing an official proceeding and physical violence on Capitol grounds, has been in custody since his arrest last May and is currently awaiting a trial scheduled to begin March 4.

He is accused of traveling to Washington, D.C., with two people and using a bullhorn to encourage rioters on the grounds to move forward toward police lines. McHugh also is accused of using a metal sign and bear spray against officers during the chaos that temporarily halted Congress’ certification of President Joe Biden’s victory in the 2020 election over then-President Donald Trump.

The 35-year-old construction worker, who has been ordered to remain in custody pending trial because he poses a danger to the community and faces up to 20 years, is seen on various videos at the Capitol and was arrested after the FBI received a series of tips about him, court records say.

But McHugh’s lawyer says in a new federal court filing that five of the 10 counts against him should be dismissed on largely technical grounds, including the notion that Congress’ actions that day were not an “official proceeding” as defined by law.

Instead, Assistant Federal Defender Maria Jacob argues in a 29-page filing the work of Congress that day was an “administrative and ceremonial” duty not covered by the law.

“The government’s theory appears to be that Mr. McHugh’s statements allegedly made to law enforcement and the crowd while using a megaphone along with his alleged ‘attempt’ to pull back a barricade on the capitol grounds is sufficient to show that he ‘impeded’ or ‘influenced’ the electoral count,” Jacob wrote. “Based on this, Mr. McHugh could not have possibly been on notice that, by wielding a megaphone, he was committing a felony obstruction of an official proceeding.

“Mr. McHugh’s words were an expression of his First Amendment rights, and there was no criminal intent to do anything more than express his anger regarding the election.”

Jacob also argues that McHugh never entered the Capitol “and was not a part of the group who initially breached the building.”

“His intent was to protest on the grounds of the building and there is no evidence that he had any intent to ‘influence’ or ‘impede’ what was happening inside the building,” she wrote.

Jacob also argues that three counts charging McHugh with conduct in “restricted buildings or grounds” where then-Vice President Mike Pence as “temporarily visiting” must be dismissed because Pence was not, in fact, “temporarily visiting.”

“The Capitol is a federal government building in the District of Columbia, where he lived and worked,” she wrote. “Moreover, he actually worked at the Capitol Building and grounds — it was his place of employment.

“In his official capacity as the ‘President of the Senate,’ he had a permanent office ‘within the United States Capitol and its grounds.’ The Vice President was not ‘visiting’ the Capitol Building, he was working there, carrying out his sworn official duties to be ‘presiding’ over the vote count ceremony.”

Prosecutors say they have video from the Capitol grounds from Jan. 6, as well as evidence gleaned from the seizure of McHugh’s two Motorola cellphones, two laptops, a digital camera, a body camera and USB thumb drives.

“I am also reminding you that significant surveillance, including aerial surveillance, was conducted by the FBI of defendant and his residence,” Assistant U.S. Attorney Jacob Strain wrote to McHugh’s lawyers in November. “This first round of discovery includes the surveillance reports and a few photographs.

“However, the FBI has gigabytes of data comprised of pictures and videos taken of defendant and his residence.”

McHugh is one of more than 675 individuals from all 50 states arrested so far in connection with the Capitol riot, and one of four from the Sacramento region.

One defendant, Valerie Elaine Ehrke of Arbuckle, already has resolved her case with a guilty plea to a single misdemeanor count and was sentenced to probation in September.

Charges are pending for another defendant, Tommy Frederick Allan of Rocklin, and negotiations are continuing in the case against former Sacramento GOP activist Jorge Aaron Riley, who is accused of entering House Speaker Nancy Pelosi’s office during the riot.

Riley had been scheduled for a court hearing Thursday, but that was postponed until Dec. 22 because prosecutors and Riley’s lawyers are “negotiating a possible disposition” of the charges, court records say.

McHugh is the only one of the four local defendants who was ordered to remain in custody pending resolution of their cases.