A federal judge sharply criticized the Justice Department Tuesday for speaking to the press about its case against alleged members of the Oath Keepers paramilitary group facing conspiracy and other charges in connection with the Capitol insurrection.
"I called this hearing this afternoon to make clear to everyone that this case will not be tried in the media," U.S. District Court Judge Amit Mehta said. "If there are further public comments or stories of the kind that we've seen in the last 48 hours, I will not hesitate to consider a gag order."
The 10 defendants are accused of conspiring to disrupt Congress' certification of the Electoral College count on Jan. 6. Mehta pointed to two recent stories that he said could affect the jury pool or the defendants' right to a fair trial.
The first was a 60 Minutes piece that featured a lengthy sit-down with Michael Sherwin, the former acting U.S. attorney for Washington, D.C. In the interview, Sherwin discusses the Capitol riot investigation, including the Oath Keepers case, some of the government's evidence and potential future charges such as sedition.
The other story appeared in The New York Times. In that article, anonymous officials said the department was weighing possible sedition charges in the Oath Keepers case.
Mehta made clear that both stories were in his view unacceptable.
"Let me just say at the outset that I was surprised — and I'm being restrained in my terminology — surprised to say the least to see Mr. Sherwin sitting for an interview about a pending case about an ongoing investigation," Mehta said. "Whether his interview violated Justice Department policy is really not for me to say, but it is something I hope the Justice Department is looking into."
Turning to the New York Times story, Mehta said he found it "troubling" that sources in the department were detailing possible additional charges in an ongoing case. The judge said he has "little doubt" that anonymously discussing internal department deliberations about an ongoing case violated Justice Department policy.
"No matter how much press attention this matter gets, let me be clear that these defendants are entitled to a fair trial, not one that is conducted in the media," he said. "They are also entitled to defend against the charges that are actually brought against them, not speculation about what might or might not be coming."
"The government, quite frankly in my view, should know better," he said.
Mehta told the prosecutors working the case that he doesn't believe they were responsible for the public statements, but he said the Justice Department needs to understand that such remarks in the press can jeopardize the integrity of a case and the rights of the defendants.
"It is my job to ensure that the defendants receive a fair trial," he said. "So let this hearing sere as notice on the Justice Department that I will not tolerate continued publicity in the media that I believe affects the fair trial rights of these defendants."
In response, John Crabb, a supervisor and chief of the Criminal Division in the U.S. Attorney's Office in Washington, D.C., said the department "understands and shares the court's concern" about the press stories, and assured him that it has already taken steps to address both of them.
Crabb noted that the department has rules and procedures that govern contacts with the press. In the case of Sherwin's 60 Minutes interview, he said, "as far as we can determine at this point, those rules and procedures were not complied with."
He said the matter has been referred for review to the department's Office of Professional Responsibility, which investigates attorney misconduct.
On the other story, Crabb said the department has no reason to believe any attorney on the trial team was associated with the disclosures. But he said that matter to has been referred to the Office of Professional Responsibility for investigation.
Lawyers for several of the 10 defendants in the case said they had been contacted by 60 Minutes but had declined to discuss the investigation because it would have been inappropriate.
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