Former acting US Attorney Michael Sherwin’s unapproved interview with CBS’ “60 Minutes” on Sunday about the Capitol riot cases has been referred to the Justice Department’s Office of Professional Responsibility, a department lawyer said in court on Tuesday.
The move reflects the Justice Department’s cautious approach under now-Attorney General Merrick Garland, a former appellate judge, and how he can try to steer his agency away from the brazen political maneuverings that characterized the Trump era.
It also sets the tone for subsequent media coverage of the Capitol riot events, as a federal judge objected to Sherwin’s interview and a New York Times article.
As Sherwin conducted the interview, “rules and protocols were not followed,” according to John Crabb Jr., a top criminal lawyer for the US Attorney’s Office in Washington, DC.
On Tuesday, DC District Judge Amit Mehta issued a stern warning to the Justice Department and lawyers for the 10 suspects in the Oath Keepers plot Capitol riot case not to speak to the media.
Following a New York Times report about possible sedition charges and Sherwin’s interview with “60 Minutes,” Mehta called an emergency hearing with lawyers in the case on Tuesday.
“Quite frankly, the government, in my opinion, should know better,” Mehta said. “There will be no media prosecution in this case.”
Mehta also said that he would not hesitate to impose a gag order on the high-profile case in the future, indicating that he believes Justice Department sources, whether on the record or indirectly, could become a problem if their remarks could bias a jury.
Sherwin largely reiterated his claims from January that more serious sedition charges could be brought against Capitol rioters who collaborated to prevent Congress from certifying then-President Donald Trump’s defeat.
“I personally believe the evidence is trending towards that, and probably meets those elements. I believe the facts do support those charges. And I think that, as we go forward, more facts will support that.” Sherwin said when asked why sedition hasn’t been charged in any of the more than 300 federal criminal cases.
Sherwin, however, was no longer the US Attorney for the District of Columbia on Sunday, and CNN announced that he had not received permission from his Justice Department superiors to speak publicly.
There have been no allegations of sedition brought against the rioters, and the Justice Department has a policy of not intervening on ongoing investigations.
In court on Tuesday, Mehta expressed his hope that the department was looking into Sherwin’s decision to speak out, as well as anonymous remarks about the case published in The New York Times this week.
According to Crabb, the Justice Department has referred anonymous comments to the media about the case for investigation. Investigators were weighing potential sedition charges against members of the Oath Keepers, according to the New York Times, which quoted “law enforcement officials briefed on the deliberations.”
The Justice Department’s professional responsibility unit will examine Justice Department employees’ actions and make recommendations on whether they should face disciplinary action.
Prosecutors at the Justice Department aren’t known for commenting on pending inquiries or speculating on what they could charge in court.
In high-profile cases, federal judges often require extra care to secure defendants’ rights and discourage prospective jurors from being swayed if a trial is held.
On Tuesday, some of the Oath Keepers’ defense lawyers told the judge that “60 Minutes” reached them multiple times before the segment aired. One of the Oath Keepers’ attorneys apologised to the judge in an interview with the New York Times.
“I thought the comments by Mr. Sherwin were very prejudicial,” the defense attorney, Carmen Hernandez, said.
On Tuesday, Ethan Nordean, the chief of the Proud Boys Seattle, praised Sherwin’s remarks in arguing that he should not be imprisoned while awaiting trial.
Nordean’s lawyer didn’t try to extrapolate what Sherwin’s words mean for his case, instead emphasizing for the judge that Sherwin advised prosecutors to create sedition cases while leading the Capitol riot investigation, and that he said the Proud Boys had “a strategy.”
On Tuesday, Nordean and another Proud Boys chief appeared in court for a brief hearing. Both defendants entered not guilty pleas. Judge Timothy Kelly has scheduled a more formal hearing for next week, at which Nordean and prosecutors will debate whether he should be imprisoned.
At this time, none of the more than 300 suspects in the Capitol riot cases have entered a plea. The investigators have confirmed that their investigation is continuing.
