A federal judge lambasted the Justice Department on Tuesday, warning that top officials’ comments in recent media interviews threatened to taint the prosecution of some of the most notorious participants in the Jan. 6 Capitol breach.
In a hastily assembled video conference, District Court Judge Amit Mehta declared he was “surprised, to say the least” by a CBS “60 Minutes” interview with Michael Sherwin, who recently stepped aside as the lead prosecutor in the Capitol attack and as the acting U.S. attorney in Washington.
In the interview aired Sunday, Sherwin said he believed the facts gathered by investigators would support a charge of “seditious conspiracy” against some of the Capitol rioters — a grave, rarely used criminal charge reserved for attempts to overthrow the government or interfere with government activities.
Mehta also referenced a Monday evening article in The New York Times that described internal Justice Department deliberations about seditious conspiracy charges and indicated that top officials believed they were likeliest to be deployed in the case of the Oath Keepers, a militia group whose members descended on the capitol on Jan. 6 in an organized, premeditated manner. Ten Oath Keepers have been charged so far, with as many as five more expected to be added to the alleged conspiracy.
“These defendants are entitled to a fair trial, not one that is conducted in the media,” Mehta said as he opened the conference, which included senior supervisors in the U.S. Attorney’s office. “I will not tolerate continued publicity in the media.”
Mehta said he would consider a gag order if he sees additional public comments, and he noted that his court has rules limiting public comments by lawyers that can impact a case.
“These kinds of statements in the media have the potential of affecting the jury pool … I intend to enforce that rule vigorously,” said Mehta, an appointee of President Barack Obama. “The government, quite frankly, should know better.”
The comments from Mehta were out of character for the typically mild-mannered judge, who rarely uses his courtroom for the type of dressing down he delivered Tuesday, and it showed showed how seriously he took the DOJ transgressions.
Offered a chance to respond, John Crabb, the head of the criminal section of the U.S. Attorney’s Office in Washington, agreed with Mehta’s concerns.
“With respect to the ‘60 Minutes’ interview … the Department of Justice has rules and procedures that govern contact with the media. As far as we can determine, those rules and procedures were not complied with,” Crabb said. The matter, he said, had been turned over to DOJ’s Office of Professional Responsibility for an internal review.
Crabb said the Times story would also be the subject of an internal review.
In a sign of his concern, Mehta ordered all counsel of record in the case to be on the video conference Tuesday afternoon where he dressed down the government over the public statements and leaks. The veteran prosecutor who replaced Sherwin as acting U.S. attorney earlier this month, Channing Phillips, was not on the call. However, three of his top deputies were: Crabb, J.P. Cooney and Gregg Maisel.
Mehta also offered a chance for all of the defense attorneys for the 10 Oath Keepers charged in the case to weigh in, with several expressing concerns that the public comments could affect their clients.
A Justice Department spokesperson declined to comment earlier Tuesday on whether senior officials were aware of Sherwin’s interview in advance or whether they’d given permission for it. Justice Department guidelines give U.S. attorneys considerable discretion in speaking to the media, but it is considered improper to discuss evidence or make statements that could complicate a defendant’s ability to get a fair trial.
Sherwin’s comments to CBS echoed similar ones he leveled in January just as the Capitol investigation was getting underway, when he foreshadowed graver charges to come. But no seditious conspiracy charges have been filed yet, even as Sherwin has relinquished his post and headed back to the U.S. attorney’s office in southern Florida.
Judges have so far balked at some of the evidence presented against the Oath Keepers, noting that prosecutors had yet to show evidence that the group’s members intended to breach the Capitol to disrupt the constitutionally mandated counting of Electoral College votes.
Internal messages obtained by prosecutors show them making plans to participate in the events surrounding the certification of the Electoral College vote, including to provide security to speakers at former President Donald Trump’s rally near the White House. They also show claims by some of the group’s leaders that they had established multiple outposts outside D.C. limits with weapons. Prosecutors have emphasized in their filings that the investigation of the Oath Keepers is ongoing.