Little-Known Justice Department Holdover Thrust into Center of Capitol Drama

Acting U.S. attorney for D.C. to prosecute hundreds of rioters

Acting U.S. Attorney for Washington, D.C., Michael Sherwin / Getty Images
January 7, 2021

A little-known Justice Department holdover has been thrust into the center of a national crisis after thousands of Trump-inspired rioters attacked the U.S. Capitol on Wednesday.

Michael Sherwin, the acting U.S. attorney for Washington, D.C., is a career prosecutor who took his post on a temporary basis in May. Once slated to lead the office through an uneventful transition, Sherwin will supervise dozens and potentially hundreds of criminal prosecutions arising from the assault on Congress in the coming weeks.

The Biden transition team released a slate of nominees to lead the Justice Department on Wednesday morning. U.S. attorneys are political appointees, and the incoming Biden administration may wish to replace Sherwin quickly with one of its own. The transition office did not respond to the Washington Free Beacon's inquiries about Sherwin's future.

Though Sherwin is a career Justice Department official, his appointment as acting U.S. attorney prompted criticism. Sherwin advised former attorney general William Barr on national-security issues, and administration critics cast the appointment as an example of Barr's funneling loyalists to politically sensitive posts. The U.S. attorney for Washington, D.C., oversees investigations of interest to Trump.

Sherwin began his DOJ career as a line prosecutor in Florida bringing cases against South American drug cartels and served in Afghanistan on special assignment, where he helped local authorities on terrorism trials. He recently led the successful prosecution of a Chinese woman who was arrested for trespassing at Trump's Mar-a-Lago club in Palm Beach.

The D.C. U.S. attorney's office has teed up 55 cases related to the Capitol attack. About 40 of those cases will be handled in Superior Court of Washington D.C., and 15 will be prosecuted in federal court. Sherwin described those indictments as a first step during a Thursday conference call. The FBI said Thursday that it is reviewing tips and digital media to identify instigators, and Sherwin said that investigators are using cell site location information to triangulate the movements of rioters on hand at the Capitol.

"The Department of Justice is committed to ensuring that those responsible for this attack on our government and the rule of law face the full consequences of their actions under the law," acting attorney general Jeffrey Rosen said Thursday. "Our criminal prosecutors have been working throughout the night with special agents and investigators from the U.S. Capitol Police, FBI, ATF, Metropolitan Police Department and the public to gather the evidence, identify perpetrators, and charge federal crimes where warranted."

Rosen sent a memo to federal prosecutors in September directing them to consider sedition charges against rioters arrested during the unrest of the spring and summer. Sherwin said Thursday that his office will consider bringing such indictments against the insurrectionists on Capitol Hill.

Even if Wednesday's events are unprecedented in the history of the country, large-scale riot prosecutions are not. Sherwin noted that his office has charged 174 cases stemming from left-wing riots that subsumed the capital over the summer. The D.C. U.S. attorney also charged over 200 defendants in 2017 for alleged participation in the #DisruptJ20 rampage that engulfed downtown Washington during President Trump's inauguration. Violent demonstrators destroyed storefronts, burned cars, and charged police lines.

Those cases could provide a roadmap for prosecuting participants in the Capitol attack. Some of the 2017 defendants stood trial, even though they were not tied to specific acts of destruction. Rather, the D.C. U.S. attorney prosecuted them on the theory that their very presence screened the movements of those engaged in violence, enabled them to elude authorities, and constituted willful association with criminal activity.

That argument was controversial. Civil-rights groups like the ACLU called it an unconstitutional "guilt by association" approach. A jury returned not-guilty verdicts for the first defendants tried on that theory, leading prosecutors to dump cases against 130 others.

The U.S. attorney dropped all remaining charges in June 2018, citing a string of not-guilty verdicts and unfavorable court rulings. Wednesday's mass bum-rush on the Capitol, however, could revive interest in the approach, and a D.C. jury might react differently in light of Wednesday's events.

Other prosecutions, such as those for unlawful entry, assaulting police, or possession of an unregistered firearm, would be comparatively straightforward.

President-elect Joe Biden announced Wednesday morning that he will nominate Judge Merrick Garland for attorney general and former White House aide Lisa Monaco as his deputy.