UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. Criminal Action No. 21-453 (JDB) SEAN MICHAEL MCHUGH, Defendant. MEMORANDUM OPINION 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. Background 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 1 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 …
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