Backlash was swift after then-acting US Attorney spoke on '60 Minutes' about Capitol riot probe
By JAY WEAVER | The Miami Herald | Published: May 8, 2021
(Tribune News Service) — In September 2019, Michael Sherwin won a widely publicized criminal case against a Chinese woman accused of trespassing at President Trump's Mar-a-Lago club in Palm Beach.
Soon after, the seasoned South Florida prosecutor would get a call from the Justice Department about a temporary assignment advising U.S. Attorney General William Barr on national security matters related to China and other foreign countries.
For Sherwin, who had served in the Middle East as a naval intelligence officer during the 9/11 era, it was an offer he could not refuse. It was also a first-time assignment in the nation's capital that would dramatically raise his profile. As he briefed Barr, Sherwin deployed his military-like, matter-of-fact style of speaking.
Impressed, Barr eventually appointed Sherwin — a career prosecutor from Miami who was raised in Ohio — as the acting U.S. Attorney in the District of Columbia. In that hot seat, he wound up running the investigation of the Jan. 6 U.S. Capitol riot. His stint in President Donald Trump's administration, fraught with media and political accusations that he was a "Barr guy," climaxed with his TV interview on "60 Minutes" about one of the biggest criminal cases in American history.
But just hours after the interview aired, Sherwin's star turn in Washington would come to a crashing finale as the Justice Department under the new Biden administration opened an internal probe of him for his appearance on the CBS News show and his comments about the massive investigation. Sherwin, who did not get permission to do the "60 Minutes" interview, had already given notice to leave the Justice Department days before it was broadcast on March 21.
He returned to Miami, resigned as a federal prosecutor from the U.S. Attorney's Office in South Florida, and joined a major law firm, Kobre & Kim, in early April.
While Sherwin said he could not talk about the Justice Department's investigation of him, he told the Miami Herald in a recent interview that his whirlwind tour of duty in the nation's capital took a heavy toll on his life.
"I had a very rough year and a half in D.C. — I was never home, I never saw my kids, I was sleeping in my office," Sherwin, 49, told the Herald.
"I did my duty. I knew I couldn't leave after the 6th. I knew it was best for the department and hoped it would serve the country well," he said. "But I was getting burned out, too. I recognized that I needed to go back home and get my bearings again because it was 19 straight months of nonstop work."
The Justice Department declined to comment about referring Sherwin to the Office of Professional Responsibility, an internal watchdog that reviews the conduct of prosecutors in the federal judicial system. Several lawyers familiar with the matter say it was highly unusual for any federal prosecutor to do an interview on a major national case with the news media without the Justice Department's approval.
But they also generally concur that Sherwin did not disclose any sensitive information about the Capitol insurrection probe during his televised interview on March 21 that was not already known to the public from his prior Justice Department news conferences and interviews. More than 400 Trump supporters were arrested and mostly charged with trespassing, vandalism or theft of government property, while a few dozen of those were accused of conspiring to stop Congress' certification of the Electoral College vote for Trump's Democratic opponent, former vice president Joe Biden.
Deep experience as Miami prosecutor
Sherwin's current and former colleagues at the U.S. Attorney's Office in Miami said he was tailor made to direct that sprawling investigation because of nearly 25 years of experience as a prosecutor, investigator, supervisor and intelligence officer.
"He was the type of guy who got these huge complicated financial crimes cases and got involved in them from head to toe," said former federal prosecutor Michael Nadler, who worked with Sherwin when he ran the healthcare fraud section in Miami. "Some people [in the office] are out to get the stats and press, but that's not Sherwin. He's that guy who rolls up his sleeves, gets in the middle of the investigation and follows the evidence. Whether he's filing charges or not, he just wants the end decision to be right."
During his stint in Washington, D.C., Sherwin not only provided Barr and his office with advice on national security issues as an associate deputy attorney general but he also was delegated to lead several major investigations. He was tapped to investigate the December 2019 terrorist shooting at the Pensacola Naval Air Station in which a Saudi Arabian Air Force trainee killed three U.S. sailors and injured eight others. The shooter, shot by local sheriff's deputies, was found to have acted alone. But the probe ended with the expulsion of 21 Saudi military trainees in the United States.
Barr turned to Sherwin again for an even bigger assignment, taking over the U.S. Attorney's Office in D.C., the largest in the nation with more than 400 prosecutors dealing with both federal and local criminal cases. The May 2020 appointment was highly political, mainly because Sherwin was an outsider who had never worked in the office and it was concluding the controversial prosecutions of Trump associates Michael Flynn, Roger Stone and other defendants from the Mueller investigation into Russian meddling in the 2016 presidential election.
Sherwin caught flak in the Flynn case because he sided with Barr's polarizing decision to withdraw the former national security adviser's plea deal with the Justice Department, stemming from how evidence was obtained in the FBI investigation.
But the controversial Flynn case would be the least of his problems.
After a Black man, George Floyd, was killed in May of last year by a white Minneapolis police officer who pinned his knee on his neck for more than nine minutes, Black Lives Matter protests erupted in cities around the country, centering in the nation's capital. After a summer of turmoil involving clashes between BLM demonstrators and extreme right-wing activists who supported Trump, Sherwin's office prosecuted about 175 offenders. As the top federal prosecutor, he drew criticism and praise from the protesters and media across the political spectrum.
Sherwin, who did his first national TV interview with Tucker Carlson on Fox News, said his priority as the top federal prosecutor was to separate protesters committing acts of vandalism and violence from those who were simply exercising their right to free speech under the Constitution — "divorced of politics."
"It worked to the benefit of the country and the department," said Sherwin, who had run-ins with the D.C. mayor and metropolitan police chief over his approach to the BLM protest cases. "I learned a lot over the summer."
But that crucible would turn out to be a mere rehearsal for what was to come during one of the most divisive presidential elections in U.S. history.
Investigating the US Capitol riots
After Trump lost the November election to Biden, the Republican president and his lawyers pursued legal efforts to overturn votes in battleground states that he lost, claiming widespread fraud that was rejected by dozens of officials and judges, citing lack of evidence. On Jan. 6, Congress was scheduled that afternoon to approve the Electoral College results, certifying Biden as the new president. That same morning, Trump was staging a rally on the National Mall, condemning the election results with his supporters chanting, "Stop the Steal."
There had been intelligence picked up by authorities about the rally but nothing specific about a planned assault on the Capitol building.
Sherwin, known as a hands-on prosecutor, was literally on the ground with the D.C. police, witnessing Trump's speech and the onslaught of demonstrators. Dressed in a running suit, Sherwin said it was a "carnival-like" atmosphere, but he also noticed people wearing tactical gear, including Kevlar vests and military helmets. He said the rally quickly shifted from pro-Trump slogans to anti-Congress chants.
Scaffolding was set up in front of the Capitol for the upcoming Jan. 20 presidential inauguration. Protesters started climbing it and hanging pro-Trump flags.
Sherwin thought to himself, "Things are going bad," as he headed back to the U.S. Attorney's Office, which is near the Capitol. The crowd was growing dangerous and its anger was aimed at Congress and the newly elected president, as they chanted "Fuck Biden" and "Bring down the House."
Sherwin, who joined other federal authorities at a command center in Capitol Police headquarters, said the unrest seemed surreal as it escalated into a full-blown riot inside the halls of Congress. He thought how could this be happening in the United States of America?
But he said what shook him to core was when he learned that shots were fired. A Capitol police officer fatally shot a rioter, a female Air Force veteran, inside the building. A Capitol Police officer also later died from injuries in the pro-Trump rampage, along with four other people.
"It's amazing that more people weren't killed," Sherwin said.
Top Trump officials decide not to arrest people in Capitol
Sherwin said a decision was made at the highest levels of government not to carry out sweeping arrests at the Capitol and turn the building into a crime scene. Instead, the vast majority of rioters, including members of extreme right-wing groups such as the Proud Boys, were allowed to leave without incident. He said the plan was to clear the Capitol building so that Congress could resume the certification of the Electoral College results and show the American people that their democracy would be saved.
He said that authorities were confident they could recapture the crime scene and various suspects through video footage, social media and tips from the public. The investigative command center shifted from the Capitol Police's headquarters to the FBI's building, where a vast spread sheet was set up with hundreds of names of potential targets assigned to agents. He said his experience managing probes of the naval air station shooting in Pensacola and the summer protests after Floyd's death helped him organize the Capitol breach investigation.
Sherwin said he used the same constitutional balancing test on whether to file charges in the Capitol cases – was a crime committed or was the offense an exercise in free speech?
"These were not complicated cases," Sherwin said of the Capitol breach probe. "What made these cases so unusual were the scope and scale of the crime," reaching into almost every state in the country, including Florida.
Sherwin's tour of duty as acting U.S. Attorney ended soon after the Biden administration took over the Justice Department. He was asked to stay on as the lead prosecutor in the Capitol breach probe, but Sherwin said it was time to move on after making the bulk of the cases in the investigation. Just before he would pack his bags to head back to Miami, 60 Minutes asked him to do an interview about his role as the chief prosecutor in the case.
Sherwin agreed, but without the approval of his bosses at the Justice Department. In the interview, he talked about the types of cases that had been made under his watch and noted that there might be evidence to charge certain rioters with sedition in the ongoing investigation. When asked by the interviewer Scott Pelley, Sherwin also mentioned that everyone associated with the Jan. 6 Trump rally and Capitol riot was being investigated, suggesting the former president's conduct was under scrutiny.
Backlash after '60 Minutes' interview
When the interview was over, Sherwin immediately found himself in trouble with his colleagues at the Justice Department. An internal investigation was launched into his appearance on the popular CBS News show and his comments about the ongoing Capitol breach probe.
Even some national news media and cable TV channels suggested he crossed the line, and some attorneys of defendants charged in the Capitol insurrection also cried foul.
A couple of days after the interview, a federal judge in one of the Capitol cases took the Justice Department to task over Sherwin's public comments on national TV. "I was surprised — and I'm being restrained in my use of terminology — to see Mr. Sherwin sitting for an interview about a pending case in an ongoing investigation," U.S. District Judge Amit P. Mehta said during a hearing.
A federal prosecutor who had served under Sherwin at the U.S. Attorney's Office in D.C. told the judge there appeared to be a problem with his following Justice Department procedures. "As far as we can determine at this point, those rules and procedures were not complied with in respect to that '60 Minutes' interview," said John Crabb, chief of the criminal division at the U.S. Attorney's Office in D.C. He added that prosecutors had referred the matter to the department's internal watchdog, the Office of Professional Responsibility.
David O. Markus, a prominent Miami defense attorney, said the Justice Department's action against Sherwin is totally misguided.
"Classic of DOJ to care about this and not real prosecutorial misconduct," said Markus, the author of a popular legal blog in the Southern District of Florida. "Michael Sherwin is a lawyer of the utmost integrity. And I don't give praise to many former prosecutors.
"He is non-partisan and is one of the most decent, fair-minded lawyers I have dealt with in my career. He worked his ass off prosecuting these cases [in Washington], literally around the clock. He should get some thanks and DOJ should focus on the real problems in our system."
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