Judge Upbraids Prosecutors of Capitol-Riot Case After ‘60 Minutes’ Interview

WASHINGTON—A federal judge overseeing one of the largest Capitol-riot conspiracy cases chastised prosecutors Tuesday for speaking to the media about the investigation, saying it could hurt the defendants’ ability to receive a fair trial.

“This case will not be tried in the media,” U.S. District Judge Amit Mehta said at a brief hearing he scheduled on short notice, after the prosecutor who until recently has run the investigation gave an interview to CBS’s “60 Minutes,” which aired it Sunday.

In the interview, Michael Sherwin, who left his post as acting U.S. attorney for the District of Columbia earlier this month, spoke about the broader investigation, including the sprawling case before Judge Mehta against alleged members of the Oath Keepers militia. Mr. Sherwin largely echoed comments he made at the outset of the investigation and in press conferences since, including about the possibility of some defendants facing sedition charges for their actions in the Jan. 6 riot by supporters of former President Donald Trump.

Justice Department rules generally bar prosecutors from speaking publicly about ongoing investigations, and some former agency officials criticized Mr. Sherwin for giving the interview.

At the hearing, the judge said he would issue a gag order if he saw further statements in the press about the case. He expressed surprise at seeing both the interview and a separate New York Times article on Monday that reported, citing law-enforcement officials, that prosecutors were considering sedition charges in the Oath Keepers case. “I will not tolerate continued publicity in the media that I believe affects the fair-trial rights of these defendants,” the judge said.

At the hearing, John Crabb, who runs the criminal division in the U.S. attorney’s office in Washington, said the Justice Department had referred the circumstances around the “60 Minutes” interview and the New York Times report to its office of professional responsibility. He said the internal watchdog would examine whether Mr. Sherwin had followed appropriate department procedures in agreeing to the interview and investigate who had spoken to the Times.

“As far as we can determine, those rules and procedures were not complied with,” Mr. Crabb said, referring to Mr. Sherwin’s interview. Mr. Sherwin declined to comment.

Days after the Jan. 6 attack, Mr. Sherwin said he had assigned a team of senior national-security prosecutors to build “sedition and conspiracy charges related to the most heinous acts that occurred in the Capitol.”

The Biden administration considered keeping Mr. Sherwin, who was named to the high-profile position by the Trump administration, in charge of the investigation into the Capitol riot, The Wall Street Journal reported last month. The probe has led to more than 300 alleged rioters facing charges ranging from trespassing to assaults on police officers and obstructing a congressional proceeding—the certification of President Biden’s election victory over Mr. Trump.

The administration instead moved Channing Phillips, who served as acting U.S. attorney in the district under the Obama administration, to that post earlier this month. Mr. Biden is expected to nominate another official to take the job on a permanent basis in the coming months. Mr. Sherwin returned to his job as an assistant U.S. attorney in Miami last week. A Justice Department spokeswoman declined to comment.

In the “60 Minutes” interview, Mr. Sherwin also said investigators were examining the actions of Mr. Trump, as he had suggested in past news conferences.

“It’s unequivocal that Trump was the magnet that brought the people to D.C. on the 6th,” Mr. Sherwin said, suggesting that the public evidence cut both ways as to his potential culpability. “We have soccer moms from Ohio that were arrested saying, ‘Well, I did this because my president said I had to take back our house,’” Mr. Sherwin said, adding that on the other hand, militia members were saying: “‘You know what? We did this because Trump just talks a big game. He’s just all talk. We did what he wouldn’t do.’”

Mr. Trump was impeached by the House and acquitted by the Senate on a charge of inciting an insurrection based partly on the speech he gave just before the riot.

Earlier this month, Judge Mehta allowed the lead defendant in the Oath Keepers conspiracy case, Thomas Caldwell, to be released from jail to home confinement, citing in part the lack of evidence that specifically showed him planning to breach the Capitol in advance of Jan. 6.

“The question in my mind is, was there a plan as of January 6th to enter the Capitol, and was your client part of it, or was the opportunity presented,” Judge Mehta said to a lawyer for Mr. Caldwell.

Photo: Michael Sherwin, acting U.S. attorney for the District of Columbia, gave a Jan. 12 update on the Capitol riot probe; he has since left the post.
PHOTO: SARAH SILBIGER/PRESS POOL

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