Michael Sherwin probably did not expect his brief tenure as U.S. attorney for Washington, D.C. — capped by leading one of the largest federal criminal investigations in history — to implode quite so publicly, or to end in an investigation into ethical misconduct.
But that is what happened last week after CBS’ “60 Minutes” aired an interview with him on March 21 about the investigation into the siege on the U.S. Capitol. Sherwin had been appointed as acting U.S. attorney by Attorney General William Barr in May. He was stepping down at the time of the interview to return to his old job as a line attorney in Miami.
Over the course of the interview, Sherwin talked about the investigation generally and touched on a small number of seemingly controversial issues, including the potential for sedition charges. This immediately prompted backlash among former federal prosecutors — particularly after it was reported by CNN that Sherwin had supposedly not received “prior approval” from more senior officials in the department before sitting for the interview.
One former prosecutor called it “flat out improper,” another said that leadership should be “infuriated,” and one of Robert Mueller’s former deputies in the Trump-Russia investigation — Andrew Weissmann, himself the author of a tell-all book that drew similar criticism — said that Sherwin had “jeopardized these important cases by grandstanding for the press.” (Disclosure: I had a small number of professional interactions with Sherwin while I worked at the department on an investigation with his office.)
Things escalated for Sherwin March 23, when the federal judge in Washington, D.C., overseeing a case involving alleged members of the so-called “Oath Keepers” convened the lawyers in the case to express his displeasure with Sherwin’s appearance. “The government, quite frankly, in my view, should know better,” U.S. District Judge Amit Mehta told them. The government’s lawyers seemed to concede the point and told the judge that Sherwin’s conduct had been referred for an investigation into possible ethical misconduct by one of the department’s internal watchdogs.
I have written critically about Sherwin’s tenure in the past, and I was also critical of the ways in which the Justice Department during the Trump administration used statements to the press and media appearances to push misleading narratives and advance improper partisan objectives. But in this case, Sherwin is being treated too harshly, and the precedent that it is setting is not a good one for the public —or for much-needed democratic accountability on the part of the Justice Department.
Let’s start with the basics.
Under Justice Department guidelines, prosecutors are generally not supposed to disclose “non-public, sensitive information” to the public, and under the rules in D.C.’s federal court, lawyers in criminal cases are not supposed to release information to the public “if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” The theory is that defendants deserve to be judged by juries based on the evidence presented by the government at trial and not to be swayed by public sentiment.
In this case, however, all of what Sherwin said was already alleged in public documents or was otherwise unobjectionable. And he actually provided some much-needed and welcome insight into how the government has been approaching this investigation — particularly for those of us who have not had the time to follow the complex proceedings closely and who have questions about it.
Sherwin began by giving an overview of the 400 cases that are already pending and the sorts of charges that have been filed against the defendants — an account that was highly general and also informative. He talked about how the office wanted to “charge as many people as possible before” President Joe Biden’s inauguration and had focused on people who had become prominent online — an approach that followed a classic logic of prosecutorial deterrence that every criminal lawyer knows well. And he talked about “the plus factors that cross that line from a protester to a rioter” — like throwing something at an officer — non-public information that I suspect many viewers would have found insightful.
Sherwin also spoke about several cases more specifically, and those comments have drawn the sharpest criticism. But here too, the criticism is misguided. Sherwin said that the department had “charged multiple conspiracy cases, and some of those involve single militia groups, some of them involve multiple militia groups.” Well, that is clear from reading the public charges. And he talked about the alleged Molotov cocktails found from a defendant named Lonnie Coffman, but all of the details Sherwin provided were in public court documents posted on the DOJ website.
Sherwin went on to describe how video of some Oath Keepers showed military-style formations. Those comments may have seemed a little too charged, but here, too, the government had made this allegation in public court filings. Also, what most people seem not to know is that Sherwin served in the Navy before becoming a prosecutor, so he probably knows what he is talking about.
Sherwin also talked about the case against two men charged with assaulting Capitol Police Officer Brian Sicknick, who later died, and said that if it turns out that the bear spray that those men allegedly used “directly relates” to Sicnick’s death, “that’s a murder case.” But this was, first of all, obviously true as a legal matter under the federal murder statute, and second probably helpful to viewers who might have been struggling to understand why such charges have not already been filed.
Some have dinged Sherwin for his claim that seditious conspiracy charges may be appropriate in the future, but those comments were not tied to any specific cases. He also provided a rudimentary perspective on whether Trump might be liable for the conduct of rioters — which, while overly simplistic, was useful because it gave insight on why the departments thinking about Trump’s guilt was wrong.
To be sure, prosecutors should generally refrain from speaking publicly about what might happen in the future in specific cases before there is a trial, but the norm against speaking public disclosures is far from rigid. Prosecutors give news conferences in major cases; they write lengthy, so-called “speaking indictments” that provide more details than legally necessary in order to inform the public; and they provide official background briefings to reporters in select cases (something that I also did as a prosecutor with the approval of the department’s press office). The difference is that these are all one-sided and sometimes anonymous disclosures. You can say that Sherwin was grandstanding, but at least he actually put his name to his statements and fielded questions, which is a good thing.
More important, the public deserves to have some insight into how the government is handling a rare and consequential investigation like the one concerning the Capitol riot, and most people do not have the time or legal training to rummage through the hundreds of legal filings to date.
This does not mean the government should provide non-public details about specific cases, but we should know how the government is approaching these cases, where the government sees key legal distinctions in conduct, and why we have not seen — and may never see — certain types of charges.
This is an investigation that has serious implications for our democracy, our social and civic cohesion, and the legitimate First Amendment rights of peaceful protesters who are not violent rioters. The long-term stakes could scarcely be greater, and wherever you find yourself on the political spectrum, you are better served in forming your views about the appropriateness of the government’s response by being better informed about what the government is doing and why.
The precedent being set is not a good one. There will now be a chilling effect on statements to the press by the Justice Department in major cases, but sometimes — like when the government closed the case involving the shooting of Tamir Rice — the government owes us some insight into its thinking. Perhaps we will be satisfied by that insight, or perhaps not, but it can be a vital mechanism for public accountability on the part of federal law enforcement, which is all too often unwilling to explain itself even in cases where the public interest is significant, sincere — and entirely justified.
Ankush Khardori is an attorney and former federal prosecutor who specialized in financial fraud until last year.