Judge refuses to toss charges against Northern California man in Jan. 6 Capitol riot case

A federal judge on Tuesday refused to dismiss five felony counts against Sean McHugh, a Northern California man accused of taking part in the Jan. 6 Capitol riot and using bear spray against police officers, setting the stage for McHugh to face trial starting in May.

U.S. District Judge John D. Bates issued the order in Washington, D.C., rejecting McHugh’s contention that five of the 10 counts he faces should be tossed out because the laws he is accused of violating are too vague and that he was merely expressing his First Amendment rights.

Bates, in a 47-page order citing dictionary definitions, the Federalist Papers and decisions by other judges, wrote that “even a criminal code written by God could not satisfy McHugh’s test for vagueness. “

“The Constitution’s test is designed for mere mortals, and passes,” the judge concluded.

McHugh faces eight felony and two misdemeanor counts charging him with assaulting or resisting officers, obstructing an official proceeding and violence on Capitol grounds, and had argued that his actions during the insurrection were an exercise of his free speech and that he never physically entered the building.

Lawyers for the 35-year-old construction worker from Auburn argued that Congress’ actions that day did not constitute an “official proceeding” as defined by law and that the law is unconstitutionally vague.

“Following the lead of five other judges in this District, the Court rejects both of McHugh’s contentions,” Bates wrote. “His narrow interpretation of ‘official proceeding’ is unsupported by statutory text and makes little sense applied to congressional proceedings.”

Bates’ ruling was not a surprise. He told lawyers in a hearing last week that he planned to deny the motion to dismiss the counts and set a trial date of May 31.

More than 700 people have been charged in the riot, which temporarily interrupted the certification of President Joe Biden’s victory over then-President Trump. Trump has spent the last year falsely insisting that the election was stolen from him, and over the weekend suggested that if he won election in 2024 he could pardon Jan. 6 defendants.

Prosecutors say they expect their case against McHugh to take five or six days to present, while McHugh’s federal defenders say they will need two days to present their defense.

McHugh is the only one of four Sacramento-area defendants charged in the Jan. 6 riot to remain in custody. One has pleaded guilty to a misdemeanor and received probation, a second is in negotiations that could resolve the case before trial and a third has his case still pending.

Before his case goes to trial, McHugh’s defense attorneys told the judge that they intend to seek a change of venue in the case, something Bates noted is rarely successful.

This story was originally published February 2, 2022 at 5:00 AM.