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Judge takes Justice Department to task over former US attorney's 60 Minutes interview

The DOJ says former U.S. attorney Michael Sherwin's comments have been referred to the Office of Professional Responsibility for review.

WASHINGTON — The Department of Justice has referred the former U.S. Attorney for the District of Columbia to the DOJ’s Office of Professional Responsibility for review of whether his comments about ongoing Capitol riot cases violated department policy, an attorney prosecuting charges against a group of Oath Keepers said Tuesday.

Sherwin’s comments, which aired during a 60 Minutes segment on Sunday, were the subject of an emergency meeting called by District Judge Amit P. Mehta on Tuesday. Mehta called the attorneys for nine alleged members of the Oath Keepers charged in the Capitol riot, along with representatives from the Department of Justice, to make it clear he would not tolerate further such press appearances.

At issue were comments by Sherwin, who stepped down as acting U.S. attorney earlier this month, about the possibility of sedition charges in the case and references to “specific evidence” during the 60 Minutes segment.

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“Let me just say at the outset that I was surprised – and I’m being restrained in my terminology – to see Mr. Sherwin sitting in an interview about an ongoing investigation,” Mehta said.

Sherwin, who was appointed last year as acting U.S. attorney by then-Attorney General William Barr, oversaw the initial investigation and the bulk of the more than 300 federal cases that have been filed so far in connection with the Capitol riot.  

Mehta said he found Sherwin’s comments inappropriate, and that if the DOJ makes further such comments in the future it could put the case in jeopardy. Mehta also said additional such interviews could draw sanctions from him.

“I will not hesitate to consider a gag order,” he said. “I will also not hesitate to sanction any attorney who violates our local rules about making a statement about pending criminal cases.”

A representative for the DOJ said the department has “guardrails” in place regarding how federal prosecutors talk about ongoing cases, and also said the Sherwin’s comments had been referred to the Office of Professional Responsibility for review. No members of the trial team in the case were involved in the interview.

While none of the attorneys representing the defendants chose to raise a formal objection during the hearing, several said they too had been contacted by 60 Minutes for comment and had declined. The attorney representing alleged Oath Keeper Donovan Crowl, Carmen Hernandez, said she declined to speak to 60 Minutes but chose to comment to the New York Times the following day because she thought Sherwin’s comments were “very prejudicial” to her client.

Despite Sherwin’s statements on 60 Minutes, to date, no Capitol riot defendants have been charged with sedition and the government has not indicated in filings to the court that any such charges are currently pending.