"60 Minutes" interview about Capitol riot investigation sparks internal watchdog review

On Tuesday a federal judge said it was "troubling" that Michael Sherwin, the former acting U.S. Attorney for the District of Columbia, spoke about potential sedition charges in the ongoing Capitol riot investigation during an interview with CBS' "60 Minutes." Washington Post national security reporter Devlin Barrett joins CBSN "Red & Blue" anchor Elaine Quijano with the details, and the latest on upcoming plea talks.

Video Transcript

ELAINE QUIJANO: Federal prosecutors are reportedly preparing for plea discussions with many of the suspects charged in the US capital riot investigation. At least 400 people have been charged for crimes related to January 6. Over 100 of them for assaulting police officers. More charges are expected.

As investigators piece together larger conspiracies, we're learning more about potential charges against members of militia groups. Former acting US attorney for DC Michael Sherwin told 60 Minutes' Scott Pelley, members of groups like the Oath Keepers could face sedition charges.

Sherwin had been overseeing the federal probe until last week. On Tuesday, a judge said he was troubled and surprised by Sherwin's appearance. He expressed concern about its potential impact on both defendants and jurors in upcoming trials surrounding the attack.

Washington Post national security reporter Devlin Barrett has been following the story, and he joins me now from Washington. Hi, there, Devlin. Thanks for being with us. So let's start with that.

Needless to say, in looking at sort of the judge's comments, it appears the judge was not at all happy and expressed a great deal of concern about the appearance by Sherwin on 60 Minutes.

DEVLIN BARRETT: Well, exactly. And he basically called a surprise hearing to tell the prosecutors on the case that he was unhappy and asked for an explanation. And what the prosecutors said was, they were surprised by it too. That interview did not follow internal DOJ procedures, according to the prosecutors. And that they have launched an internal review over exactly how that came about.

And look, there's-- the Justice Department is under a great deal of pressure right now to show that it can handle what is one of the biggest criminal investigations in the country's history. So obviously it's a high-stakes issue. Mr. Sherwin is going to have some issues now with the internal DOJ watchdogs. And it just shows you how politically fraught these cases are. And with so many defendants, how difficult a logistical challenge this is.

ELAINE QUIJANO: Now, before we move on, Devlin, I'm just curious. I mean, as someone with experience covering these matters, just how far out of the norm is an appearance like the one that we saw on Sunday, when that interview aired. In a case as high profile as the capital riot investigation, to have that level of specificity, that level of speculation with respect to the facts of a case. I just think it's something that can't be overstated. Was it-- is this something that we've seen before to this level?

DEVLIN BARRETT: It's pretty unusual, I have to say. I've covered the department for about 20 years. It's pretty unusual to see a prosecutor talk about a pending case that way, particularly when he's just sort of offering his view of the notion, well, we may get to these charges eventually.

That's something you're generally not supposed to do. But it's also interesting, you have to look at his sequence. He said much the same in January. And I think at the time, those statements were taken as trying to reassure the public that the Justice Department was pursuing this to the full extent.

And now I think those comments just land very differently. Because you have people charged in cases, and they do have rights in our system. And so now to repeat those things with the same or even more impact is even more, I think, alarming to judges. And the Justice Department definitely doesn't want to get on the wrong side of these judges before these trials have even started.

ELAINE QUIJANO: Right. All right. Well, moving on. How is the Justice Department handling the sheer volume of evidence and suspects? And what do you make of the fact that it took two months to discuss possible plea deals in these cases?

DEVLIN BARRETT: Well, in some measures, this case is going incredibly fast, right? They have charged more than 300 individuals. They expect to charge a total of about 400 by the time they're done.

And what you're seeing is something that's very unusual in a lot of federal cases, which is, the Justice Department has to do this all out in the open, because the thing that precipitated this case was the riot that everyone remembers. Just absolute anarchy in the halls of Congress.

Normally when the Justice Department investigates something, they have time to proceed carefully and cautiously, and often secretly on their own. But they can't do that here. They have to rush in. They have to work backwards and look backwards and investigate backward.

That creates some real challenges. But in this sea of people that they have charged, there are some folks who, as far as they can tell, are not-- let's call them the worst offenders. Some lawyers refer to them as MAGA tourists.

And so, you're going to start seeing conversations between some of those folks, defense lawyers, and the prosecutors, to see if they can just plead out those cases and deal with them. Because frankly, it would be a benefit to the prosecutors in some sense to have some of the small fish, let's say, basically go away, and not be a giant burden on the court system, which is already straining under all these cases.

ELAINE QUIJANO: Well, Devlin, you reported on a case where prosecutors gave a single defendant 835 photos and video files over 12,000 pages of data extracted from their phone, and 2,600 pages of Facebook records. Why are some defense lawyers taking issue with how the government is handling the release of data to their clients?

DEVLIN BARRETT: So this gets very complicated, because we live in a social media age, and this was a social media event. And there's just volume after volume after volume of videos and photos. And it's not like each of these cases really lives in a vacuum.

The person standing in the rotunda may have video of three other people, and those people may have video of that person. And they may all be charged. And so how you handle all this evidence in a fair and careful way gets very complicated very quickly.

And I think, for some folks, the answer may be, well, can we just have a plea deal that sort of short circuits the messiness of that? But for folks who want to fight their case, there are a whole group of things you have to consider, such as-- and what prosecutors really want, is to make sure that none of the material that they give one defendant is sort of grabbed up by another defendant and used to try and fight their case.

That's sort of the gamesmanship that's been going on in the early days of these cases. And so there's a lot of back and forthing about exactly what is the fair and easiest way to share these vast, vast volumes of evidence.

ELAINE QUIJANO: Interesting. So bottom line here, you touched on it a moment ago. But what's the next step for the hundreds who have already been charged?

DEVLIN BARRETT: Well, as these cases go forward, you're going to see prosecutors make decisions about whether, for example, a bunch of the Oath Keepers should all be in one big conspiracy indictment. Whether, for example, a bunch of the Proud Boys should all be in one big conspiracy indictment.

Those are sort of the big decisions that have yet to get made. But also there's going to be, I think, as we wrote about, there's going to be, I think, a culling. You're trying to separate out as some people call them, MAGA tourists from the more seriously dangerous people. People who attacked police officers. The people who tried to attack police officers. Those are the tough cases and the ones that they are most concerned about, prosecutors and agents.

And so those would take a long time to sort out, while you could have this other batch of lesser cases that, you know, get handled reasonably well over the next year.

ELAINE QUIJANO: All right, Devlin Barrett for us. Devlin, thank you very much.

DEVLIN BARRETT: Thanks for having me.