Michael Sherwin, who was the acting U.S. attorney in Washington overseeing the prosecution of Capitol rioters, gave a revealing interview to 60 Minutes this week. Its ripple effects in courtrooms and at the Department of Justice were almost immediate. Josh Barro and Ken White talk about that interview and what Sherwin said about the possibility of sedition charges for the rioters and other criminal charges for former President Trump.
Plus: Sidney Powell’s lawyers file an interesting motion in response to Dominion Voting Systems’ defamation case against her. It’s not a good look. Plus: how the Biden administration is changing tack on a number of cases before the Supreme Court, Roger Stone, and more.
Read the full transcript below
Josh Barro: Let’s start with President Biden. This week, his administration has changed positions in a number of court cases that are coming before the Supreme Court. They changed positions in a case about the Affordable Care Act, and one relating to union organizers and whether they’re allowed to go on to the property of the company where they’re trying to organize. One [case is] about voting rights. There’s a donor disclosure law in California, where the administration is taking a new position from the past administration, and so, is this typical when a new administration comes into office that maybe they’ve been arguing one thing in a case and they decide actually we’re going to argue the opposite thing?
Ken White: Typical probably overstates it, historically. It’s becoming more typical. President Trump did it on a number of cases regarding the Affordable Care Act and President Biden is already showing that he is going to do the same thing. It’s really a matter of when one administration’s policy choices are significantly different than the last one’s and those policy choices are reflected in some of the legal arguments being made. In the past, they were a little more cautious about it, I think. You didn’t have quite such stark changes in the positions, which, by contrast, you sometimes had with governors in the states, but now I think that Trump and now Biden have somewhat normalized a broader view and less hesitation to simply reverse the administration’s stance on a particular issue.
Josh Barro: Does that hurt your position in court? I mean, at least in theory, what the lawyers in the Department of Justice and in the Solicitor General’s office [are] supposed to be arguing about [is] what the law is, not about what the law ought to be, or what the policy preferences are of the administration about what laws should be enacted. In theory, the question of what these laws said should not change with who wins elections. Now, of course, the theory is very different from the practice and there’s a lot of ideology that goes into law and judicial nomination, so clearly the theory is not true. But it’s supposed to be at least sort of true, right? And so isn’t it an issue for the administration if, basically, it’s so clear that what they’re arguing depends on which political party is in power?
Ken White: Well, sure, there, there are certainly cases where it’s harder to separate ideology from legal analysis, and big-issue cases with connections to very large economic issues like the Affordable Care Act are most likely to have those types of situations. The Biden administration would probably argue that they’re not really continuing a Trump tradition as much as they are reversing a Trump tradition. They would likely argue that they are setting aside some very ideological positions that the Trump administration took in a number of cases. I think that’s probably a little exaggerated and not completely fair to the Trump administration. I think it has been normalized, to some extent, to make more ideological arguments and the courts are used to very ideological arguments. They’re able to sort it out and they’ve seen these changes in the past, so it’s nothing they can’t handle.
Josh Barro: Sidney Powell has filed her response to the defamation lawsuit that Dominion Voting Systems brought against her for spinning these wild conspiracy theories about how they conspired with Venezuela and a wide variety of other entities to steal the 2020 election from Donald Trump. Her response is interesting because it makes a number of arguments that you would think that Sidney Powell would find quite embarrassing. One of them is that when you make political statements, people understand that these are argumentative and maybe hyperbolic and things that sound like factual claims may really be opinions. And the filing describes the extremely heated and contentious political context in which Powell made these statements and they argue furthermore that “reasonable people would not accept such statements as facts, but would view them only as claims that await testing by the courts through the adversary process.” So that’s a fairly embarrassing thing to have to say about yourself in court, right? That a reasonable person would not have assumed that when you said that Venezuela worked with Dominion to steal the election that you actually meant that that was a factual claim — that Venezuela had worked with Dominion to steal the election.
Ken White: Yeah, I think Sidney Powell here is really trying to stretch quite a bit the definition of what an opinion or political hyperbole is. Remember that one of the strengths of Dominion’s lawsuit against her and against some of the others was it went into great detail about exactly the things that were said, and they were pretty crazy things like how Dominion’s software had been developed by Hugo Chavez to permanently steal elections, and about how it was being used to simply transfer votes by algorithm from Trump to Biden, and things like that. And these were factual — they were not merely saying ‘Dominion is a crook,’ or ‘Dominion can’t be trusted,’ which are very plausibly things that would be opinion and political hyperbole. They were talking about specific physical events and things like that, and so when Sidney Powell here is doing this, I think she’s playing a little fast and loose with the doctrine.
One thing that I noticed with this motion to dismiss is it really didn’t engage at all with the specifics of the things she said. So normally, Josh, in this analysis, when you’re talking about is this statement a provable statement of fact and therefore potentially defamatory, or is it hyperbole or opinion, you engage with well, what exactly did she say? What were the exact words? That close textual analysis is essential. Here, it’s more of a general characterization of the context and circumstances and general nature of what she said. She very lightly if at all engages with her own actual words. And I think that is tough for her argument, because Dominion in their suit was very careful to be very specific about specific things that weren’t true. Like, ‘No, we didn’t simply flip a switch and flip votes from Trump to Biden.’ So although she has all the law right about how you analyze things and although in the vast majority of circumstances, political rhetoric is going to be treated not as defamation but as hyperbole, here, I think she misses the mark a little bit because she doesn’t apply that very closely to what she actually said.
Josh Barro: She misses the mark only a little bit. That seems pretty good for Sidney Powell.
Ken White: Yeah, well, I’m kind of grading on a curve here that includes the pillow guy and Rudy Giuliani and so it’s fairly easy to distinguish yourself in this crowd.
Josh Barro: When I was reading this motion, if the claims in the motion about what the law is and what that means for her situation … were true, it would just seem to create huge gaps in terms of the protection that defamation law is supposed to provide people whose reputation is damaged by false statements. Because it’s not just basically the claim that anything she said in the context of a political dispute couldn’t have been defamatory. They also talked about how she made these statements in the context of ongoing litigation, which is to say, all the bulls*** lawsuits she was filing all over the country. And she basically argues that you have protections for things that you say in court in the course of litigation, and therefore obviously that must also extend to things that you say on television about whatever it is that you’re doing in court, because that’s so closely related to litigation. So is that true? If you want to go out and make a bunch of defamatory statements about someone, can you protect yourself by filing a simultaneous frivolous lawsuit against that person? And therefore whatever you say about it relates to the lawsuit, and you therefore cannot be sued over it?
Ken White: No, she’s playing a bit of a sleight of hand here. So there are two doctrines that are relevant. One is the idea that statements about ongoing litigation are more likely to be interpreted as opinion than as fact. So we understand that [when] people are talking about their lawsuit against someone else, they’re going to be talking as advocates. But that’s just an interpretive rule. It’s a factor when you’re looking at the context. It’s not a black-and-white category that if you’re talking about litigation, therefore, it’s not defamation. She tries to make it into a black-and-white category, and it just isn’t one.
Then there’s something called the litigation privilege. A number of jurisdictions have laws that say, basically, what you say in a lawsuit can’t be the basis for a defamation action, [and] what you say on the stand as a witness can’t be the basis for a defamation action. This prevents people from turning every litigation into an unending cascade of lawsuits, suing each other for what they said in the litigation. However, this is generally limited to what’s done in the papers in court. It typically ends on the courthouse steps, so for instance, you can’t file a lawsuit accusing someone of being a convicted felon if it’s not true, and then go out in the courthouse steps and say, ‘I just sued him for being a convicted felon.’ That becomes defamation even if the lawsuit is protected from defamation. So I think her lawyers are doing the best they can with what they have. It’s competently done. The doctrines are competently discussed and illustrated. It’s just the application to the extreme facts that she provides that are a little bit lacking, I think.
Josh Barro: So if that’s the best they can do here, then presumably, this case is going to survive her motion to dismiss and we will go on to a trial between Dominion Voting Systems and Sidney Powell?
Ken White: Well, we’ll have to see. She also is asking to dismiss on the grounds that the D.C. court doesn’t have personal jurisdiction over her or entities, and that it’s the wrong venue — that there’s no connection to D.C. and it ought to go in Texas. So obviously, you would much rather have this case defended in Texas than in Washington, D.C. So even if she loses this, you can expect a long period of preliminary motion practice and disputes over discovery and things like that. This isn’t going to trial anytime soon.
Josh Barro: Do you have a view on that venue issue? Can this case be tried in D.C.?
Ken White: Well, I’m glad you asked, Josh, because change-of-venue rules are really one of my favorite parts of the entire canon of Western law. [laughter] They’re just fascinating. It is a little weird, frankly. I guess it’s D.C. because that’s where the president goes and that’s the center of government, but other than that, the statements were mostly made elsewhere. Dominion is from Colorado. She’s not from D.C. So the venue is a little questionable in Washington, D.C. That said, generally there’s some discretion given to the plaintiff to pick among multiple permissible venues.
Josh Barro: I was amused in this filing that in the process of arguing that these statements were fundamentally political and therefore making that argument about how political statements are often hyperbolic and may not be understood as factual claims. They refer to her as an “attorney-advocate for the president” and they present a wide variety of cable news screenshots with chyrons identifying her as a lawyer associated with the president or with his campaign, which is funny because the president very publicly made that statement, “Sidney Powell is not my lawyer, she’s out here practicing law on her own.” I guess I’m not sure that matters for the legal analysis because if her claim is that her statements were fundamentally political, I guess it doesn’t really matter whether she was doing that in a formal capacity as the president’s attorney, but can you be an attorney-advocate for someone without actually being their attorney?
Ken White: No, that’s not a thing. I mean, you can just be someone who was an attorney and also is out there being your own ‘Leave Britney Alone’ video guy for whoever it is, but that doesn’t make you some sort of magical category of attorney-advocate. This kind of connects to the other big theme of the motion, and that’s her argument that they haven’t alleged facts sufficient to show that even if these are factual statements that she made them with actual malice.
They argue that Dominion’s a public figure. I think they’ll win on that even though Dominion thinks they won’t. And so Dominion has to show that false statements were made with actual malice. That means knowing they were false or with reckless disregard to their falsity, deliberately looking aside from evidence that they weren’t true. And they go into a very deep dive, a Sidney Powell-esque dive into ‘Well, sure, all these things they say are discredited that she relied on, but that’s just, you know, the Big Media that’s biased against us saying it’s discredited.’ And really the bottom line of the argument is, ‘Well, you can’t show that she didn’t believe this stuff.’
Really now and then, Josh, as either a criminal defense attorney or as an attorney representing someone in a civil case, you have to find a diplomatic yet clear way to convey the concept that my client is just a complete fucking idiot, and I think that’s what they’re trying to do here. What they’re trying to convey is: ‘Judge, look what a lunatic this person is. How can you possibly establish that she didn’t believe this nonsense she was saying if this is the way she is?’ And it’s not a terrible argument. That is their challenge. Dominion has tried to rise to that challenge by framing it as her being a huckster, that she’s saying all this stuff for money, not because she’s crazy. But I mean, it is not a self-evidently true argument, and it is not necessarily going to be easy for them.
Josh Barro: But I’m sorry, doesn’t that come into conflict with something else that’s in Powell’s own brief? If you’re going to argue at one turn that you honestly believed that these things were true when you said them and therefore you did not act with actual malice, but also when they’re talking about these not being statements of fact, another argument they make about why this wouldn’t be actionable, they point to the plaintiffs (to Dominion), saying that what Sidney Powell was putting out there were wild accusations and outlandish claims, that Dominion said these statements were inherently improbable and even impossible. And then Powell’s own lawyer says, “Such characterizations of the allegedly defamatory statements further support defendant’s position that reasonable people would not accept such statements as fact, but view them only as claims that await testing by the courts.” So how can it be true that you honestly came to believe that this stuff was true, and yet any reasonable person listening to it would not have taken this as a factual statement?
Ken White: Well, Josh, if the logic seems to [be]: No reasonable person would believe this is true, but you can’t prove my client didn’t believe it was true, therefore, my client, well … I’ll let you fill in the rest.
Josh Barro: [laughter] Yes, yes.
Ken White: Again, a certain amount of subtlety is called for when throwing your client under the philosophical bus here and saying that your client’s a nut and this is just the way they are.
Josh Barro: Speaking of Trump’s crack team of one-time lawyers, Rudy Giuliani is back in the news. He has a Razzie nomination for Worst Supporting Actor in “Borat Subsequent Moviefilm.” So first of all, congratulations to Rudy on that high honor that you are up for. We hope that you win that Razzie for Worst Supporting Actor.
But there’s also this news report that Rudy, when he ended up in that hotel room and he lays back on the bed and says, “I was just tucking in my shirt.” But it ended up being this very embarrassing moment in the film, that after Borat runs in and then Giuliani … apparently he tried to have the movie crew arrested for extortion? Whatever that is, it’s not extortion.
Ken White: No, I mean, it’s clear Rudy had no clue what was going on and maybe he thought it was some sort of scam, where they lure him into the room with a girl and they come in and demand money? Because that’s a thing? Or maybe extortion was the first crime that popped into his head when he was deciding what to accuse them of. But actually from what I’ve read, this is not atypical of things that happened with Borat. When they shoot these things, the police are not infrequently called, and I, believe it or not, have had Borat victims call me after the fact and see if there’s anything they can do. I bet a number of lawyers out there have because people are just left bewildered. Most people don’t have Rudy Giuliani’s power actually to get the police or the Feds to pick up the phone, so I think that the Borat crew is probably lucky that they didn’t actually get detained there briefly.
Josh Barro: What is your answer to these folks when they ask ‘Is there anything I can do to Borat?’ Is the answer no?
Ken White: Yes, at length and politely: no. Or hell no, or just don’t. Just don’t.
Josh Barro: Michael Sherwin, who until recently was the acting U.S. attorney in the federal prosecutorial office in Washington, D.C. had been overseeing the Capitol riot prosecutions during the end of the Trump administration and the beginning of the Biden administration. He also recently gave an interview to 60 Minutes in which he told CBS’s Scott Pelley that he believes the evidence collected about the attacks supports criminal charges for sedition and that further evidence will further support that. He also floated the possibility that former President Trump could have some sort of criminal liability related to the attacks. So Ken, we’ve talked a lot about the varying press practices between local district attorneys and federal prosecutors, but like, this is not the sort of interview that a federal prosecutor is supposed to give, right?
Ken White: Definitely not. Definitely not. This is one where my wife kicked me out of the room while I was watching it because I kept yelling at the screen and saying, “You can’t do that,” like when she tries to watch “Law & Order.” It seemed like a self-promotion interview, something designed to raise his individual profile as a person and possibly as some sort of future political hopeful or aspirant for some higher job. But it did a lot of things that are very much against DOJ policy and DOJ culture and tradition. He was talking about cases against specific people. He was speculating that in some of these cases, there was more than enough evidence to bring seditious conspiracy charges against specific people and even if he didn’t use their names, he identified the case clearly enough so that it’s the acting highest law enforcement officer in this particular district talking to the jury pool saying that these people probably committed seditious conspiracy, which they’re not charged with. So, just very inappropriate. His review of the events of the day, on January 6 were almost like a prosecutor’s opening or closing argument: a review of the highlights and the worst things and talking about their significance and the importance of doing something about it. And while there was some acceptable stuff in there, just generally about how they’re dealing with this volume, a lot of it was just deeply inappropriate.
Josh Barro: We talked earlier in the show about some disagreements between the Biden DOJ and the Trump DOJ, but this is something they agreed on. Sherwin had previously been denied permission to give an interview like this during the waning days of the Trump administration. Sherwin is a longtime career prosecutor. He was brought into this acting position by President Trump, but he had been a prosecutor in the Miami office for a long time. Presumably, he knew that you are not supposed to do this sort of thing. You described this as self-promotional, but like, self promoting to what end? He still works for the Department of Justice. Isn’t this going to impair his career there?
Ken White: Well, I mean, when prosecutors do something like this, I usually figure they might be running for a higher office and that they have their eyes on that. Maybe he has political aspirations. Maybe he has aspirations as a TV pundit, I don’t know. But it didn’t really make sense as promoting the case and it quite quickly had some significant consequences in court. Two separate judges have basically called the Department of Justice to account. One judge in the Oathkeepers case (with a number of members of the Oathkeepers) brought it up in court the next day saying, ‘What’s going on here?’ Asking the defense lawyers what they thought about it, and telling the prosecutors there, ‘Look, I know you didn’t do this, but someone did it and you need to look into this.’ And then another judge handling some of the Capitol cases has basically invited discussion of whether or not there should be a gag order. So the judges are seeing this and they’re not happy, and you would not expect them to be happy over this type of publicity.
Josh Barro: Does this have any impact on the prosecutions? I understand it annoys the judges, so if you have a gag order that restricts the parties from discussing the case in the press, does any of this actually make it harder to try and convict these people?
Ken White: For a case like this, likely not. When cases play out the press or when they don’t generally doesn’t have a huge impact on how it goes unless it’s something truly historic, like the OJ Simpson case or something like that, where the jury pool is deeply affected by the nature of the coverage. But you don’t want to make a federal judge mad, and calls can start going against you when you show bad behavior and you’re unrepentant about it. So this is not a sort of thing that the Department of Justice normally does and not the sort of thing that if you’re one of the line prosecutors actually doing the work in the case who’s actually gonna have to stand up in front of that judge, you want to see some higher-up doing.
Josh Barro: Yeah, but I mean, as you note, the judge said, ‘I know it wasn’t you personally that did this.’ And not only was it not them, but … literally this interview was taped two days before Sherwin stepped down from supervising the investigation. So not only was it not the line prosecutors, it also wasn’t the current leadership overseeing the case. So I’m wondering, if it’s more about not annoying the judge and not making him think that you’re acting in bad faith, if the judge sees that it’s literally a guy that no longer is associated with the cases, maybe that shields you from some of that blowback from the judge?
Ken White: Well, between that and the fact that it’s been referred to the Office of Professional Responsibility, which is … call it the internal affairs of the Justice Department. They’re the ones who investigate allegations of misconduct by federal prosecutors and other members of the Department of Justice. I would think that those factors (the guy being gone now, or gone to another part of the Justice Department, and there being an open investigation of what he did) [is] probably going to mollify the judges, so long as people don’t get up to more of that stuff.
Josh Barro: Is he right about seditious conspiracy? Is that something that would make sense for the Department of Justice to charge in some of these cases?
Ken White: Well, for seditious conspiracy, the part that people read says “conspiracy to overthrow the government, the United States by violence.” The part they don’t read says “conspiracy to use violence to impede the operation of the government or the enforcement of its laws.” So I think that is definitely not out of the realm of possibility that, for some people, if you can show that they intended to shut down the proceedings in Congress on January 6 by force, that is seditious conspiracy. It might be the sort that usually isn’t charged, but it is a plausible approach to it.
Josh Barro: And what would the reason be to charge it? Would it allow you to get longer sentences? In general, you want to charge the things that are simple to prove that have a sufficient penalty, right? So just because you can charge something doesn’t mean you should?
Ken White: Well, Justice Department policy in general is to charge the most serious, readily provable charge. So if the most serious is seditious conspiracy, then under that theory, that’s what you would charge. There are some things that are very rarely charged where they are probably exceptions to the rule and I think that because seditious conspiracy just sort of smacks of being political and making a political statement, that they’re a little cautious about it. They don’t want it to appear to be a political prosecution of any sort. So I think they’re a little reluctant to go diving into that, unless they have really strong evidence of it.
Josh Barro: Roger Stone has made an appearance in some filings in some cases related to this. CNN had a story about this a little more than a week ago, actually. But in a couple of these Oathkeeper cases, they’re these Roger Stone cameos. Prosecutors included a photo and one of the filings to show contact between two of the Oathkeepers, who are accused of a conspiracy related to the Capitol riot. The picture shows them with Roger Stone, and apparently some of the members of this group have provided security for Stone at various events in Washington, D.C. in the days that led up to the insurrection. And I guess why people find this interesting is: Nobody has accused Roger stone of a crime yet related to the Capitol riot. Are these like, are these Easter eggs suggesting that you know, maybe prosecutors are looking at whether Stone — some of these were his associates who were involved in this alleged conspiracy — are they maybe looking at whether Stone himself was involved in it?
Ken White: I don’t think so. Federal prosecutors don’t use Easter eggs like that. They’re not, as a rule, a subtle people. Also, what we’re seeing now is not enough to put Roger Stone into any sort of conspiracy. Just hanging out with dipshits does not mean that you conspired with a dipshit when they did something dipshit-y. There’s a jury instruction that says mere presence at the scene of a conspiracy isn’t enough to give you liability for conspiracy. So I think they would need to find Stone doing something affirmatively demonstrating by word or deed that he intended to join an agreement to break federal law, and I think that they would be somewhat reluctant to do it on weak evidence, given what a spectacle any prosecution against Roger Stone is always going to be. What a circus, and therefore, they don’t want to make it a circus on weak claims, because that just is embarrassing for everybody.
Josh Barro: I think that’s a good place for us to leave it this week. Although I do want to do a correction. We got a note from an anonymous listener in Fulton County, Georgia, pointing out that we’ve been mispronouncing the name of the new district attorney there. Her name is Fani [FAWN-nee] Willis. I apologize for the error there. Ken, I want to thank you for speaking with me this week, and we will look forward to speaking with everyone again next week.