DOJ investigating ‘sedition’ comments to media regarding Capitol riot defendants following scolding from judge

The US Justice Department is investigating disclosures from government sources to "60 Minutes" and the New York Times that raised the possibility of sedition charges against members of the Oath Keepers who were involved in the Capitol insurrection.

During a videoconference call with lawyers for the government and 10 Oath Keeper defendants, US District Court Judge Amit P. Mehta expressed concern about an interview given by former Acting US Attorney Michael Sherwin to "60 Minutes" and a story in the New York Times that ran on Monday. Sherwin, who was appointed to head the US Attorney's Office for the District of Columbia by former Attorney General Bill Barr and led the investigation into the Capitol insurrection until his resignation on March 3 told "60 Minutes" that he believes the facts support charges of sedition, while specifically discussing the Oath Keepers' actions at the Capitol. The New York Times reported that Justice Department officials are weighing whether to charge the Oath Keepers with sedition, based on statements from "unnamed law enforcement officials briefed on the deliberations."

Judge Mehta told government and defense lawyers on Tuesday that he was "surprised, and that's putting it mildly, to say the least to see Mr. Sherwin sitting for an interview" about the prosecutions.

"Whether the interview violated the Department of Justice guidelines is not for me to say," Mehta continued, adding that he hoped the department would "look into it."

He also expressed concern about the Times story, saying that divulging details of the cases could compromise the defendants' right to a fair trial and taint the jury pool.

"The government should know better," he said.

John Crabb, the chief of the criminal division for the US Attorney's Office in the District of Columbia told the judge that Sherwin's comments to "60 Minutes" did not comply with Justice Department rules of procedure and that he is requesting that the Office of Professional Responsibility review it. Likewise, he said, he is referring the matter of the Times story to the Office of Professional Responsibility "to examine and determine where that information came from."

The Office of Professional Responsibility at DOJ was established in 1975 in response to concern about public misconduct during the Watergate scandal. Its primary responsibility is investigating allegations of misconduct by department attorneys and prosecutors.

Crabb said he has no reason to believe any of the government lawyers on the trial team were responsible for the disclosure.

Judge Mehta warned that "if there are further stories in the media of this nature," he would "not hesitate to consider a gag order."