Citing ‘Twitter Files,’ George Floyd protests, Jan. 6 defendant from California decries his prosecution
Federal prosecutors say Northern California resident Sean Michael McHugh used bear spray to attack police officers outside the U.S. Capitol during the Jan. 6 insurrection, that he shoved a metal sign against officers and directed rioters forward with a megaphone while declaring, “Right now we’re storming the Capitol.”
Now, the Auburn construction worker — who has been in custody for 20 months and has refused government offers of a plea bargain — is asking a federal judge to order the Justice Department to hand over documents that could show he is being prosecuted unfairly because of his political views in support of former President Donald Trump while other left-leaning protesters around the nation have walked free.
“Mr. McHugh is being subjected to disparate prosecutorial treatment due to his political views and activism,” McHugh lawyer Joseph Allen wrote in an 18-page motion filed Wednesday that seeks government documents and a hearing on whether he is being targeted unfairly. “While this motion focuses on a single individual, this prosecution does not occur in a vacuum.
“The hundreds of protesters who arrived at the Capitol on January 6th would have difficulty finding a similar treatment elsewhere in American history, even if on a lesser scale.”
McHugh’s lawyer argues that protesters who took part in racial justice demonstrations in Portland, climate protests that injured security officers at the Interior Department in Washington and others have escaped without the brunt of federal prosecution and an FBI investigation like the one undertaken after Jan. 6, one the Justice Department has called the largest probe in American history.
In a similar filing made Tuesday, McHugh’s lawyer asserts that the “shocking revelation” alleged in the recent release of the so-called Twitter Files shows the government has attempted to restrict the First Amendment rights of citizens using the social media platform.
“This unconscionable conduct, directly at the behest of the current presidential administration in some instances, was leveled against those who hold to a particular political persuasion and those who were and are supporters of former president Trump,” Allen wrote. “This revelation should raise not only the ire and indignation of every Judiciary in this Country who are the sworn protectors and the last line in the defense of the rights of the citizenry, but also raises significant question as to selective prosecution in the January 6 cases.”
The grab-bag of claims comes as McHugh faces an April 17 trial date in Washington and as his lawyer has asked for a series of pre-trial orders that include releasing McHugh from custody pending trial, dismissing some charges, hiding part of his past criminal history from the public and moving the trial to a federal courtroom in Sacramento.
U.S. District Judge John D. Bates has yet to rule on those motions and has said he will not allow further delays in the trial’s start “unless something happens of an extreme nature.” But he issued an order Wednesday allowing Allen to file his latest motion and giving prosecutors until Feb. 10 to reply.
McHugh is one of four Sacramento-area defendants charged in the Jan. 6 Capitol Riot and the only one who remains in custody. Sacramento Republican activist Jorge Riley still faces charges stemming from the events of Jan. 6, while two others — Elaine Ehrke of Arbuckle and Tommy Frederick Allan of Rocklin — have accepted plea deals.
McHugh’s latest motion asks the judge to schedule an evidentiary hearing to support McHugh’s claims that he is a victim of selective prosecution by the government, something his own lawyer concedes is “a daunting standard” to prove.
“Nonetheless, Mr. McHugh firmly believes that his prosecution, at least in part, demonstrates a colorable case of selective prosecution,” Allen wrote. “The larger context in which this motion comes before the Court is that the nation itself is significantly polarized, both with substantive issues such as abortion, the economy, immigration, and non-substantive issues such as one’s right to simply disagree with his or her fellow citizens.
“This ever-exacerbating caustic division directly impacts and divides the electorate on every level, not the least of which is the federal government. The events of January 6th, 2021, are directly a product of this polarization with assertions, some of which have been since substantiated, that significant illegal influence was exerted by those of a certain political persuasion or under the direction of those so persuaded, over the outcome of the 2020 presidential election.”
Allen, citing a Fox News story from Dec. 24, argues that this “substantiation” includes the release of the Twitter Files, which purport to show that the “FBI was simply the doorman to a vast program of social media surveillance and censorship, encompassing agencies across the federal government — from the State Department to the Pentagon to the CIA.”
The argument extends beyond the alleged government pressure on Twitter, which would have occurred while Trump was president, and includes examples that have gained traction as conspiracy theories online and among conservative Republican politicians.
“It is stating the obvious to point out that the winner of the presidency comes into office with the obligation to appoint an Attorney General, the highest position in the Department of Justice, under whose direction and control the Department of Justice will preside over the continuing investigation and prosecution of the various participants of January 6, 2021,” Allen wrote. “This must raise the question, and Mr. McHugh does so here, as to whether the government, in its prosecution of Mr. McHugh, has exercised appropriate prosecutorial discretion or if it has crossed the line and is using its vast power in pursuing a path of selective, discriminatory, and vindictive prosecution.
“As Mr. McHugh has had opportunity to consider his own case and treatment in context of the treatment of others who, based on behavior and circumstances, are, by any reasoned review, similarly situated to himself, he is left with no other conclusion than that he is not being treated evenly or fairly as contemplated by our law and Constitution.”
As an example, Allen cites a protest in October 2021 at the Interior Department where Native Americans and other climate protesters clashed with police and pushed against police lines, with a similar protest near the White House reportedly resulting in 136 arrests.
“As far as can be determined at this time, the majority of persons arrested were either not charged at all or were ticketed and released,” Allen wrote. “None seem to have been charged with federal crimes.”
Allen added that “even a casual observer of the American political scene could surmise that President Biden’s administration is more favorably disposed to climate protesters and Native American protesters than to supporters of former President Trump and those whose political persuasion would align with his platform.”
McHugh’s lawyer makes a similar claim about the racial justice protests that gripped Portland following George Floyd’s death at the hands of Minneapolis police.
And he raises what he refers to as “the curious case of Ray Epps,” an Arizona man whose presence at the Capitol on Jan. 6 led to conspiracy theories that he was a federal informant.
“Mr. Epps seems to have an uncanny ability to find the spotlight,” Allen wrote. “There is a plethora of video footage showing him at the front of activity and encouraging people to press forward and go into the Capitol building, and yet, there are no (federal) charges leveled against him.
“In fact, Mr. Epps has escaped all charges for his well-documented participation in the January 6 protest. This juxtaposed with the FBI and Department of Justice efforts to track down even the most obscure participant in the January 6 protests leaves nothing but serious questions regarding the selective abuse of investigative and prosecutorial discretion.”
Epps later told the Jan. 6 House committee investigating the insurrection and the New York Times that he was not a government informant and that such conspiracy theories had ruined his life and forced him to move out of Arizona for his own safety.
“We have death threats,” Epps told the committee. “Some of them are very credible, and it’s not good.”
This story was originally published January 19, 2023 at 6:00 AM with the headline "Citing ‘Twitter Files,’ George Floyd protests, Jan. 6 defendant from California decries his prosecution."