60 Minutes May Have Compromised Prosecutions With Interview Of US Attorney Michael Sherwin

60 Minutes on Sunday featured a segment in which “Scott Pelley interviewed Michael Sherwin, the federal prosecutor who was leading the criminal investigation, the largest in U.S. history, into the assault on the Capitol” on January 6.

Both Michael Sherwin, a Trump appointee, and CBS’ Scott Pelley should have known better. They may very well have compromised the prosecutions of these seditious insurrectionists by handing defense attorneys an argument with which to defend their client by discussing an ongoing criminal investigation in violation of Department of Justice regulations.

Fred Wertheimer explains at Just Security:

Publicly Discussing Criminal Investigations

The Justice Department’s longstanding policy against any public discussion of criminal investigations is based on the principle that no one under investigation by the department should be tainted by public discussion of the investigation unless and until formal criminal charges are filed.

According to Rule 1-7.400 in the Department of Justice Manual, “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.” The Rule, further states, “DOJ personnel shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress before charges are publicly filed.”

I had much the same reaction as former acting Solicitor General of the United States, Neal Katyal, when I watched this 60 Minutes interview – “What in the world is he doing giving 60 Minutes an interview!”

Reuters reports U.S. judge criticizes prosecutors over ’60 Minutes’ interview about probe into Capitol attack:

A federal judge in Washington, D.C., on Tuesday criticized the U.S. Justice Department for speaking to the media about the ongoing investigation into the deadly Jan. 6 attack on the Capitol by former President Donald Trump’s supporters.

In an unusual court hearing, U.S. District Judge Amit Mehta said he was “surprised” by remarks prosecutor Michael Sherwin made to the CBS television program “60 Minutes,” and troubled by a New York Times article that cited anonymous Justice Department sources.

“I found it troubling that sources within the Department of Justice were detailing the possibility of additional charges in a pending criminal case and an ongoing criminal investigation,” Mehta said, adding, “this case will not be tried in the media.”

Mehta said the news coverage could undermine due process rights of defendants and that he would consider imposing a gag order if the pattern continues.

During the hearing, a Justice Department lawyer said Sherwin’s interview with “60 Minutes” was being referred for review to an internal watchdog, who would determine if department policies were violated.

In fact, the Justice Department is investigating prosecutor for ’60 Minutes’ interview about Capitol riot cases:

A federal prosecutor told a judge Tuesday that the Justice Department is investigating Michael Sherwin, the former acting U.S. attorney for Washington, D.C., for comments he made during a “60 Minutes” interview about the Capitol riot investigations.

His statements struck some former prosecutors as inappropriate, and Justice Department officials notably declined Monday to say whether Sherwin had sought approval before he agreed to the interview.

U.S. District Judge Amit Mehta said he 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,” he said.

John Crabb, the director of the criminal division for the U.S. attorney’s office in Washington, told the judge that Sherwin’s decision is being investigated.

“The Department of Justice has rules and procedures that govern contact with media, and as far as we can determine at this point, those rules and procedures were not applied with respect to that ’60 Minutes’ interview. Therefore that matter has been referred to the Department of Justice’s Office of Professional Responsibility,” Crabb said.

Sherwin stepped down as U.S. attorney on Friday to return to the U.S. attorney’s office in Miami.

CNN adds, DOJ refers former Capitol riot prosecutor for internal investigation after ’60 Minutes’ interview:

The Justice Department has referred former acting Washington US Attorney Michael Sherwin’s unapproved interview with CBS’ “60 Minutes” on Sunday about the Capitol riot cases to its Office of Professional Responsibility, a department lawyer said in court on Tuesday.

The development is a signal of the cautious approach of the Justice Department under now-Attorney General Merrick Garland, a former appellate judge, and how he may attempt to steer his agency away from bold political maneuvers that marked the Trump era.

It also sets an early tone in the Capitol riot cases and future media coverage, as a federal judge complained about Sherwin’s interview and a New York Times story.

“Rules and procedures were not complied with” when Sherwin did the interview, said John Crabb Jr., a leading criminal prosecutor for the US Attorney’s Office in DC.

In court on Tuesday, DC District Judge Amit Mehta strongly warned the Justice Department and defense attorneys for 10 defendants in the Oath Keepers conspiracy Capitol riot case not to talk to the media.

“The government, quite frankly, in my view, should know better,” Mehta said. “This case will not be tried in the media.”

Mehta added that he wouldn’t hesitate in the future to put a gag order on the high-profile case, making clear he believed Justice Department sources, either on the record or anonymously, could become a problem if their comments could prejudice a jury.

* * *

The professional responsibility unit within the Justice Department is able to review the behavior of Justice personnel, and make recommendations on whether they should face consequences.

It’s not typical for Justice Department prosecutors to comment on ongoing investigations or spin forward to what they might be planning to charge in court.

Federal judges often demand extra caution in high-profile cases to preserve defendants’ rights and avoid swaying potential jurors if there were to be a trial.

Several of the Oath Keepers’ defense lawyers also told the judge on Tuesday that they were contacted by “60 Minutes” multiple times before its segment aired.

One lawyer who spoke to the Times on behalf of one of the Oath Keepers apologized to the judge.

“I thought the comments by Mr. Sherwin were very prejudicial,” the defense attorney, Carmen Hernandez, said.

In another case on Tuesday, Proud Boys Seattle leader Ethan Nordean touted Sherwin’s comments as he argued he should stay out of jail as he awaits trial.

Nordean had a brief court appearance on Tuesday, alongside another Proud Boys leader. Both pleaded not guilty. Judge Timothy Kelly set a more substantive hearing for next week, where Nordean and prosecutors will argue over whether he should be jailed.

None of the more than 300 defendants in the Capitol riot cases are pleading guilty at this time. Investigators have made clear their work is ongoing.

60 Minutes, which brands itself as the smartest news program on television, should have known better and exercised poor judgment. Not smart. Yes it is newsworthy, but not at the risk of compromising prosecutions of these domestic terrorists. CBS should apologize for its poor judgment.