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The Justice Department Is Investigating Officials Who Talked To The Press About The Capitol Riot Investigation

Michael Sherwin, the former acting US Attorney in DC, had told media “the facts” support charging some Capitol rioters with sedition.

Last updated on March 24, 2021, at 3:35 p.m. ET

Posted on March 23, 2021, at 6:01 p.m. ET

Sarah Silbiger / Getty Images

Michael Sherwin

WASHINGTON — The Justice Department has launched internal probes into a recent spate of apparently unauthorized comments to the media about the status of the Capitol insurrection investigation, a supervisor in the US Attorney’s office in Washington told a judge on Tuesday.

US District Judge Amit Mehta scheduled an emergency hearing to question the government about a March 21 broadcast of 60 Minutes featuring an interview with Michael Sherwin, the former acting US Attorney in Washington, DC, as well as a New York Times article published Monday that quoted anonymous law enforcement sources. Both reports addressed the government’s conspiracy case against 10 people associated with the Oath Keepers militia collective who are charged with participating in the insurrection; Mehta is presiding over that case.

John Crabb, the head of the Criminal Division in the DC US Attorney’s office, told Mehta it appeared that Sherwin had failed to comply with the department’s rules and policies that govern contacts with the press. Crabb said Sherwin had been referred to the Office of Professional Responsibility, which investigates misconduct allegations against DOJ lawyers and officials.

Sherwin returned to his former position as a federal prosecutor in Miami earlier this month, according to the Times; he had served as the acting US Attorney in DC since May 2020 and was appointed by then president Donald Trump’s attorney general, Bill Barr. During the 60 Minutes interview, Sherwin described some of the evidence the government had gathered specifically in the Oath Keepers case and also generally discussed the possibility of bringing sedition charges — a rarity in federal prosecutions — in connection with the Capitol insurrection. Sherwin had spoken about the possibility of sedition charges at a press conference the week after the insurrection. No defendant has been charged with that crime to date.

“I believe the facts do support those charges,” he told 60 Minutes.

A spokesperson for the US Attorney’s office in Miami did not immediately return a request for comment. CNN first reported before Tuesday’s hearing that Sherwin’s interview was unauthorized.

The New York Times story at issue didn’t identify its sources by name, referring to them as “law enforcement officials briefed on the deliberations.” Those sources told the Times that DOJ officials were weighing sedition charges specifically in the Oath Keepers case. Crabb said that at this point, the department didn’t believe that members of the trial team working on the Oath Keepers case had spoken to the Times and that the story had also been referred to the Office of Professional Responsibility for investigation.

The judge didn’t penalize the prosecutors working on the case, but warned that he wouldn’t “hesitate” to impose a gag order or impose sanctions in the future if more statements about the case showed up in news reports from government sources. He said he found the latest incidents “troubling” and was concerned about tainting the jury pool and hurting the defendants’ rights.

“The government, quite frankly, in my view, should know better,” Mehta said.

Defense lawyers didn’t ask for any sanctions; several said that they, too, had been approached by 60 Minutes about doing an interview and said no. Carmen Hernandez, who represents defendant Donovan Crowl, apologized to the judge for providing a comment to the New York Times in response to Sherwin’s interview but said she felt she had a duty to protect her client; Hernandez told the Times she hadn’t seen evidence supporting a sedition charge against Crowl and was “surprised” by Sherwin’s comments.

Mehta told Hernandez that she didn’t do anything wrong, and her impulse to respond was “natural” — and why the court’s rules restricted what lawyers can say about pending cases.

Ken Bensinger contributed to this report.

Correction: Mehta said, “The government, quite frankly, in my view, should know better.” Due to a transcription error, "quite frankly" was not included in an earlier version of this post.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.