The Justice Department has referred former acting Washington US Attorney Michael Sherwin’s unapproved interview with CBS’ “60 Minutes” on Sunday about the Capitol riot cases to its Office of Professional Responsibility, a department lawyer said in court on Tuesday.
The development is a signal of the cautious approach of the Justice Department under now-Attorney General Merrick Garland, a former appellate judge, and how he may attempt to steer his agency away from bold political maneuvers that marked the Trump era.
It also sets an early tone in the Capitol riot cases and future media coverage, as a federal judge complained about Sherwin’s interview and a New York Times story.
“Rules and procedures were not complied with” when Sherwin did the interview, said John Crabb Jr., a leading criminal prosecutor for the US Attorney’s Office in DC.
In court on Tuesday, DC District Judge Amit Mehta strongly warned the Justice Department and defense attorneys for 10 defendants in the Oath Keepers conspiracy Capitol riot case not to talk to the media.
Mehta had called an emergency hearing Tuesday with lawyers in the case, following a New York Times story about sedition charges potentially in the works and Sherwin’s interview with “60 Minutes.”
“The government, quite frankly, in my view, should know better,” Mehta said. “This case will not be tried in the media.”
Mehta added that he wouldn’t hesitate in the future to put a gag order on the high-profile case, making clear he believed Justice Department sources, either on the record or anonymously, could become a problem if their comments could prejudice a jury.
In the “60 Minutes” interview, Sherwin largely repeated assertions he had made in January that more serious charges of sedition could be filed against Capitol rioters who worked together to stop Congress from certifying then-President Donald Trump’s loss.
Asked why sedition isn’t alleged yet in any of the more than 300 federal criminal cases, Sherwin responded: “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.”
But on Sunday, Sherwin was no longer DC US Attorney, and had not gotten approval from his Justice Department bosses to speak publicly, CNN has reported.
No sedition charges have been filed against rioters, and the Justice Department has internal prohibitions about commenting on existing investigations.
Mehta said in court Tuesday he hoped the department was looking into Sherwin’s decision to speak, as well as anonymous comments in The New York Times this week about the case.
The Justice Department also referred for investigation anonymous comments to the media about the case, Crabb said in court. The Times had cited “law enforcement officials briefed on the deliberations” in a story that said investigators were weighing possible sedition charges against members of the Oath Keepers.
The professional responsibility unit within the Justice Department is able to review the behavior of Justice personnel, and make recommendations on whether they should face consequences.
It’s not typical for Justice Department prosecutors to comment on ongoing investigations or spin forward to what they might be planning to charge in court.
Federal judges often demand extra caution in high-profile cases to preserve defendants’ rights and avoid swaying potential jurors if there were to be a trial.
Several of the Oath Keepers’ defense lawyers also told the judge on Tuesday that they were contacted by “60 Minutes” multiple times before its segment aired.
One lawyer who spoke to the Times on behalf of one of the Oath Keepers apologized to the judge.
“I thought the comments by Mr. Sherwin were very prejudicial,” the defense attorney, Carmen Hernandez, said.
In another case on Tuesday, Proud Boys Seattle leader Ethan Nordean touted Sherwin’s comments as he argued he should stay out of jail as he awaits trial.
Nordean’s attorney didn’t extrapolate what Sherwin’s comments mean for his defense – and instead highlighted for the judge that Sherwin, while he led the Capitol riot investigation, told prosecutors to build sedition cases, and that he asserted the Proud Boys had “a plan.”
Nordean had a brief court appearance on Tuesday, alongside another Proud Boys leader. Both pleaded not guilty. Judge Timothy Kelly set a more substantive hearing for next week, where Nordean and prosecutors will argue over whether he should be jailed.
None of the more than 300 defendants in the Capitol riot cases are pleading guilty at this time. Investigators have made clear their work is ongoing.
This story has been updated with additional information about the hearing.