The internal review and the judge’s displeasure are an ominous development for Justice Department officials trying to oversee one of the largest criminal investigations in U.S. history, in which more than 300 defendants have already been charged and 100 more are expected to be. Already, defense lawyers are trying to use Sherwin’s remarks to argue their clients are being treated unfairly.
In the “60 Minutes” interview, Sherwin said he thought seditious conspiracy charges could be filed at some point against defendants in the investigation, and suggested former president Donald Trump’s conduct was being examined. Both statements echoed similar remarks Sherwin made shortly after the Jan. 6 riot carried out by Trump’s supporters.
At Tuesday’s hearing, federal prosecutors admitted there did appear to be a problem.
“As far as we can determine at this point, those rules and procedures were not complied with in respect to that ‘60 Minutes’ interview,” and prosecutors have referred the matter to the Justice Department's Office of Professional Responsibility, an internal watchdog, said John Crabb, chief of the criminal division of the U.S. attorney’s office in D.C.
“I was surprised — and I’m being restrained in my use of terminology — to see Mr. Sherwin sitting for an interview about a pending case in an ongoing investigation,” the judge said as he started the hearing. He also said he found it “troubling” to see anonymous officials repeating the same type of statements in a New York Times story a day after the interview aired.
“No matter how much press attention this matter gets, it will be clear these defendants are entitled to a fair trial,” the judge said. “The government, quite frankly in my view, should know better.”
Sherwin declined to comment for this report.
Miami defense attorney David Oscar Markus, who has litigated against Sherwin, called the internal review “inane,” saying “Sherwin has dedicated his life to public service and did an amazing and unprecedented job on these cases. He worked around-the-clock, doing his job.”
When Sherwin made similar comments in January about his expectation of seditious conspiracy charges, and his suggestion that Trump’s conduct was under scrutiny, other Justice Department officials quickly walked back those remarks.
Some senior Justice Department officials were caught by surprise when Sherwin repeated those statements on national television this past weekend, according to a law enforcement official who spoke on the condition of anonymity to discuss the matter candidly.
Separately, lawyers representing indicted Seattle Proud Boys leader Ethan Nordean cited Sherwin’s interview in fighting prosecutors’ efforts to put him in jail while he awaits trial on charges of conspiring to obstruct Congress and impede police during the riot. Sherwin gave prosecutors “marching orders . . . to build seditious and conspiracy charges,” attorney David B. Smith wrote to the court.
Sherwin recorded the interview March 17, two days before he stepped down from supervising the investigation. In the interview, he said: “I personally believe the evidence is trending toward” seditious conspiracy charges.
“I believe the facts do support those charges. And I think that, as we go forward, more facts will support that,” Sherwin said.
Federal law makes conspiring to overthrow or oppose by force federal authority punishable by up to 20 years in prison, including the use of violence to prevent, hinder or delay the execution of law.
At a news conference a day after the riot, Sherwin indicated prosecutors were examining Trump’s conduct, too, saying, “We are looking at all actors here, and anyone that had a role, if the evidence fits the element of a crime, they’re going to be charged.”
In his television interview Sunday, Sherwin elaborated, saying, “It’s unequivocal that Trump was the magnet that brought the people to D.C. on the 6th. Now the question is, is he criminally culpable for everything that happened during the siege, during the breach?”
Justice Department guidelines require U.S. attorneys to notify and coordinate with the department before speaking to the media on matters of national importance. That includes when a prosecutor leaves or is no longer responsible for an investigation, when their personal interests may diverge from the probe, former officials said.
The guidelines also caution against making out-of-court statements about charged individuals in pending cases that may be prejudicial, including commenting about anticipated arguments or a defendant’s guilt.
A career prosecutor from Miami, Sherwin was named to the top job in D.C. last spring by then-Attorney General William P. Barr.