For all its faults, I’ve generally regarded 60 Minutes as real journalism, practiced by real journalists. Even so, their political coverage of late has been irksome — with too much both-siderist nonsense delivered none too subtly. The lead story on the March 21 show, however, went beyond both-siderist, to what I hope I’m misconstruing as subversive.
The thirteen-minute segment featured an interview with former Associate Deputy Attorney General Michael R. Sherwin, a career prosecutor who until leaving office two days before, was in charge of DOJ’s investigation into the Capitol insurrection.
It was a jaw-dropping interview, at least to a non-lawyer. For thirteen minutes, Sherwin took us through the investigation in startling detail, pointing out some of the rioters in the Capitol photos, outlining the kinds of charges they might face, and generally getting viewers salivating over the prospect of righteous restitution.
But to anyone in the legal profession, the interview set off alarm bells. I should’ve heard them myself, because anybody who’s ever watched Law & Order knows that prosecutors never ever talk to the press about ongoing investigations.
Yet there was Sherwin, openly speculating about conspiracy and sedition charges for some of the more extreme Capitol rioters. He prominently mentioned the Proud Boys, the Oath Keepers, and maybe even Trump himself as future recipients of those charges. I was duly excited, until Rachel Maddow set me straight the next night.
She told us that the judge in one of those developing cases had gone ballistic, publicly admonishing Sherwin and 60 Minutes in no uncertain terms. He was rightly concerned that speaking out in public like that could compromise these cases, and unfairly prejudice a jury.
And sure enough, lawyers for a bunch of those defendants started filing motions — to release, to dismiss, to reduce bail, etc. — the minute Sherwin went off the air.
So who is this guy, and what is it we’re smelling?
Let’s start with the simple fact that Michael Sherwin was appointed by Bill Barr. He was one of those prosecutors Barr installed at the top levels of DOJ, essentially to undermine it. The story was hot at the time, how Barr was bending the DOJ to his will — which is to say Trump’s will — and seriously pissing off career prosecutors in the process, prompting some of them to resign. By the time Barr himself resigned, DOJ was a hot mess, though we still only know the outlines of the vandalism.
But Sherwin was left as interim U.S. Attorney for D.C, which meant that on January 6, the whole Capitol riot fell to him to investigate and run with. Apparently, he did a reasonable job under the circumstances — I’ve heard no criticism of his performance in that regard. He’s now back home in Florida, but he remains a U.S. Attorney.
Regardless, there can be no innocent explanation for a career U.S. prosecutor deliberately speaking to the media about an ongoing investigation. Much less one that’s a high-profile matter of intense national interest. He can’t say he didn’t know better.
So what’s going on? Did he go on 60 Minutes to deliberately try to taint these investigations? If so, why? Is he doing it on his own? Is someone working him or playing him?
If thugs like the Proud Boys are each facing twenty-plus years in prison on conspiracy or sedition charges — which they appear to be — wouldn’t they be eager for a plea deal? Wouldn’t they have every incentive to flip on some higher-ups? Wouldn’t they want to dangle names like Roger Stone and the Flynn brothers? How about Josh Hawley? Or Ted Cruz? Or any number of Trump stooges in Congress and the White House? We don’t know these guys were involved, but there’s been no shortage of speculation.
So just think how thrilled they would all be to see charges dropped before any rioters start singing to prosecutors. Think how they might benefit from seeing those cases compromised. And what better way to compromise them than to talk about it on 60 Minutes?
Shortly after the story ran, DOJ announced an investigation into Sherwin’s actions. But if your mind is as dirty as mine, you’re thinking that even this smells of pre-planned chicanery, raising as it does the visibility of the cases.
If Trump taught us anything, it’s the value of media coverage, no matter how perverse or cynical. He also taught us the value of doing these things out in the open. Why skulk in a corner when you can be brazen about it, when you can go on 60 Minutes and openly get a federal judge apoplectic? Sounds Trumpish to me.
So while I won’t be giving Sherwin any benefits of any doubts from here on, I’m also disturbed at 60 Minutes’ behavior.
They surely knew better. This was not gotcha journalism. Sherwin willingly sat down with Scott Pelley and flagrantly violated a well-established policy of his own department. The CBS lawyers surely knew there were ethical, if not legal, concerns. But they green-lighted it anyway — a story featuring a Bill Barr appointee openly violating known DOJ policies — just so they could give viewers a titillating vision of sedition charges against numbskulls. And that’s the most charitable explanation.
Because they knowingly threw a monkey wrench into a slew of ongoing investigations. With potentially massive consequences. Why?
Yes, it made a good story, but it was hardly a ratings bonanza. Could CBS want these investigations compromised? Could it want future juries prejudiced and heinous cases dismissed on a technicality?
As a news organization, CBS has vast protections under the First Amendment, as well they should. But it gives them tremendous license, with almost no oversight. Neither the public nor the government has any credible recourse to prevent a story like this.
Which is where integrity and responsibility are supposed to kick in. If the Proud Boys skate because you can’t find a juror who hasn’t heard of their case, isn’t that — at the very least — a serious violation of journalistic standards? Shouldn’t we expect better from a supposedly trusted news source?
Of course, the damage is already done, and CBS will never have to explain its actions, apologize for them, or in any way be held accountable.
Meanwhile, nobody who saw that interview can now un-see it. Including potential jurors.