The former acting U.S. attorney in the nation’s capital likely violated Justice Department rules when he gave an interview to CBS' “60 Minutes” about the investigation into the Jan. 6 Capitol attack, and has been referred to an internal office for review, a prosecutor said Tuesday.
The chief of the criminal division for the U.S. attorney’s office in the District of Columbia made the comments after a federal judge scolded the Justice Department over the TV interview along with another recent news report and warned that further press statements could lead to a gag order or sanctions.
"These types of statements in the media have the potential to affect the jury pool and the rights of these defendants," U.S. District Judge Amit Mehta said during a hearing held via videoconference in the case against 10 members and associates of the far-right extremist group Oath Keepers, who are charged with conspiracy in the attack.
“Let this hearing serve as notice on the Department of Justice that I will not tolerate continued publicity in the media that I believe affects the fair trial rights of these defendants,” the judge said.
The flap over the interview highlights the Justice Department’s challenges in handling the sprawling case that involves hundreds of defendants from across the country. Prosecutors have sometimes struggled to maintain a consistent narrative across multiple cases, and have had to walk back some statements made in court hearings or papers because they weren't in line with what leaders were prepared to publicly argue.
Mehta said he was “surprised to say the least” to see Michael Sherwin, who until recently was leading the investigation into the Jan. 6 riot, discussing the cases on “60 Minutes.” During the interview, which aired Sunday days after Sherwin was replaced as Washington's top prosecutor, Sherwin suggested that some of the rioters could face rarely used sedition charges.
“I personally believe the evidence is trending towards that, and probably meets those elements,” Sherwin said.
Sherwin first floated the possibility of seditious conspiracy charges, which carry up to to 20 years in prison, in January and has said that a special group of prosecutors was examining whether they would apply to any of the rioters. But prosecutors have yet to levy the charge in any of the cases.
The criminal division chief, John Crabb, said the “60 Minutes” matter has been referred to the Justice Department's Office of Professional Responsibility for investigation. Crabb said the Department also plans to investigate a New York Times article quoting anonymous sources that said prosecutors have been weighing bringing sedition charges against members of the Oath Keepers.
“We understand and we share the court’s concerns about the media contacts and disclosures that have been made,” Crabb said. “The Department has already taken steps with respect to both of those.”
More than 300 people have been charged so far in the Jan. 6 riot and prosecutors have said up to 100 more people are expected to face charges. The most serious conspiracy charges have been brought against members of the Oath Keepers and fellow extremist Proud Boys faction, who authorities say came to Washington prepared to stop the peaceful transition of power.
Also on Tuesday, a federal judge ordered pretrial detention for Timothy Hale-Cusanelli, a man described by prosecutors as a white supremacist and Nazi sympathizer, charged with storming the Capitol.
Hale-Cusanelli, a military veteran, wore a “Hitler mustache” while on duty as a security contractor at at Naval Weapons Station Earle in Colts Neck, New Jersey, where he had a “secret” security clearance, prosecutors say. U.S. District Judge Trevor McFadden concluded that Hale-Cusanelli poses a danger to the public, saying the defendant has a “well-documented” history of racist and violent rhetoric, including talk of another civil war.
Associated Press reporters Colleen Long and Michael Balsamo in Washington and Michael Kunzelman in College Park, Maryland contributed to this story.