Judge 'surprised' by ex-top prosecutor's speculation to media about Capitol riot sedition charges

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A federal judge criticized the Justice Department in a rare rebuke after DOJ officials speculated in the media about possible sedition charges against members of the Oath Keepers tied to the Capitol riot of Jan. 6.

U.S. District Court Judge Amit Mehta said during a court hearing conducted by phone and Zoom he was “surprised” to see Michael Sherwin, the former acting U.S. attorney for the District of Columbia, and other officials discussing the pending investigation into the insurrection in interviews with the New York Times and CBS’s 60 Minutes.

A federal prosecutor informed the judge that the situation will be referred for investigation.

“I was surprised — and I’m being restrained in my use of terminology — surprised, to say the least, to see Mr. Sherwin sitting for an interview about a pending case in an ongoing criminal investigation. Whether his interview violated Justice Department policy is really not for me to say, but it is something I hope the Department of Justice is looking into,” the judge said. “As for the New York Times story, I found it troubling that sources within the Department of Justice were detailing the possibility of additional charges in a pending criminal case in an ongoing criminal investigation. I have little doubt that anonymously divulging internal department deliberations is contrary to department policy.”

PROSECUTOR HINTS AT SEDITION CHARGES FOR CAPITOL RIOT

The judge said he remains committed to trying defendants based on the facts of a case rather than speculation.

“No matter how much press attention this matter gets, let me be clear that these defendants are entitled to a fair trial, not one that is conducted in the media,” Mehta said. “They are also entitled to defend against charges that are actually brought against them, not speculation about what might or might not be coming. … The fact is, these types of statements in the media have the potential of affecting the jury pool and the rights of these defendants, and the government, quite frankly, in my view, should know better.”

John Crabb, who runs the criminal division for the prosecutor’s office in the nation’s capital, told the judge that the DOJ was taking action.

“We understand, and we share the court’s concerns about these media contacts and disclosures that have been made,” Crabb said.

The DOJ official said the department’s rules and procedures for contact with the media “were not complied with respect to that 60 Minutes interview” as far as the department can tell, adding, “That matter has been referred to the Department of Justice’s Office of Responsibility.”

Regarding the article in the New York Times, Crabb said, “We have no reason to believe that anyone on the trial team was responsible for those disclosures … [but] we understand how serious that is, and … we will be making a referral to the Office of Professional Responsibility with respect to that article for them to examine and determine where that information came from.”

Sherwin, who will now work at the U.S. attorney’s office in Miami, was asked on Sunday’s 60 Minutes broadcast about possible sedition charges against rioters.

“I personally believe the evidence is trending towards that and probably meets those elements,” Sherwin said, adding, “I believe the facts do support those charges, and I think that, as we go forward, more facts will support that.”

These remarks echo what Sherwin said shortly after the riot, when he announced a specialized “strike force” in January whose focus was to determine whether the DOJ could “build seditious and conspiracy charges.”

“We are closely looking at evidence related to the sedition charges,” he said that month, adding, “I think the results will bear fruit very soon.”

Members of two right-wing groups, the Oath Keepers and the Proud Boys, have been hit with conspiracy charges and other crimes for their alleged roles in the Capitol siege, but no one has been charged with sedition.

Mehta said Tuesday that if these types of public comments happened again, he would not hesitate to consider a “gag order” or to “sanction” any attorney who violated rules on public statements. The judge said the DOJ “needs to understand that these types of public statements can jeopardize the integrity of a criminal case.”

Crabb replied that the department “underst[ood] and shared the court’s concerns that there could be publicity that would prejudice the defendants and be improper and could make it difficult for someone to have a trial.”

David Fisher, an attorney for Thomas Caldwell, who is charged with conspiracy, destruction of government property, being on restricted building or grounds, and obstruction of an official proceeding and aiding and abetting due to his affiliation with the Oath Keepers, told the judge that his client is “extremely concerned because, frankly, he has borne the brunt of the adverse media coverage” and shared his hope that the department is “taking care of this issue.”

The attorney for Bennie Parker, who faces the same four charges as Caldwell, said he was contacted by 60 Minutes but declined to comment.

“The appropriate answer that we’ve given is, ‘We don’t have any comment at this point.’ … We have thought better of it,” Stephen Brennwald, Parker’s attorney, told the court. “I hope the government will do the same.”

Carmen Hernandez, who is representing Donovan Crowl, a former Marine facing the same four charges as Parker, said she, too, was contacted by 60 Minutes and explained her decision to comment in the story published by the New York Times.

“I apologize to the court if the court found my comment to the New York Times out of line. … I had to protect him and respond to what was said by Mr. Sherwin,” she said, alluding to her remarks to the outlet that she saw “no evidence to support a seditious conspiracy charge against my client” and was “surprised that the former U.S. attorney would comment so publicly on the case.”

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Mehta told Hernandez he did not find her comments inappropriate.

“I did not find it inappropriate that you responded,” Mehta said, adding that “it illustrates the danger it creates, which is if the government begins making these statements to the media, whether attributed or anonymously, it is not surprising that defense counsel may be moved to want to respond publicly as well, and that is exactly the situation we want to avoid here.”

The defendants are scheduled to appear in court in early April. The maximum penalty for obstructing an official proceeding is a sentence of up to 20 years in prison.

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