• Transcript
  • Show Notes

In this episode of Third Degree, Elie Honig is joined by Harvard Law student and former Trump administration speechwriter Eli Nachmany to discuss the conduct of former DC Acting U.S. Attorney Michael Sherwin and the potential for sedition charges against the Capitol insurrectionists. Plus, Elie tells stories from the legal trenches of his former office, the Southern District of New York. 

Join Elie every Monday and Wednesday on Third Degree for a discussion of the urgent legal news making the headlines. Third Degree takes on a bit of a different flavor on Fridays, when Elie speaks with a rotating slate of America’s most impressive law school students, exclusively for members of CAFE Insider. 

Third Degree is produced by CAFE Studios. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio and Music Producer: Nat Weiner; Editorial Producer: Noa Azulai.

REFERENCES AND SUPPLEMENTAL MATERIALS:

  • Katie Benner, “Justice Dept. Said to Be Weighing Sedition Charges Against Oath Keepers,” New York Times, 3/22/21
  • United States v. Rahman, 854 F. Supp. 254 (S.D.N.Y. 1994)
  • Devlin Barrett and Spencer S. Hsu, “Former top prosecutor in Capitol riot case faces internal review after ‘60 Minutes’ interview,” Washington Post, 3/23/21
  • Josh Gerstein and Kyle Cheney, “Capitol riot shaman’s TV interview irks judge,” Politico, 3/5/21
  • U.S. v. Gotti, 660 F. Supp. 2d 512 (S.D.N.Y. 2009)

Published March 26, 2021

Elie Honig:

From CAFE, this is Third Degree. I’m Elie Honig.

Elie Honig:

Well, welcome back to another of our Friday additions, which I think all the listeners know I really relish because I get to be with one of our brilliant cast of rotating law students. Today, for the second time, I am welcoming back Eli Nachmany. Eli, great to see you. Welcome back.

Eli Nachmany:

Thank you for having me back and wonderful time last time, and looking forward to a great conversation today as well.

Elie Honig:

So much has happened in just those last three weeks. The pace of the news, the pace of the legal news is kind of dizzying. So we will have all sorts of new stuff to catch up on today. Now I want to start by putting you on the spot for a moment. Okay? I’m going to say a word and I want your… Not your law school, first impression. I just want your human being first impression when I say this word. Okay? Sedition. All right. What jumps into your mind when I say that word, sedition?

Eli Nachmany:

So it’s obviously a negative connotation, right? In terms of word association, it would definitely be bad, not good. But sedition calls to mind, to me, something massive. Something of national significance concerning your government and either a foreign government or some overthrow-the-government-movement. But, there’s not much good associated with that word.

Elie Honig:

Yeah. Well, decidedly negative in connotation or…I guess that’s the right word? But yeah, I think you’re right. I think if you ask most people, “What do you think of when you think of sedition?” They’ll think of disloyalty, of things like Benedict Arnold, or Harper’s Ferry, the raid on Harper’s Ferry down in Virginia. Things like that, that really had the US government teetering on the brink.

Elie Honig:

The reason I raise it, is because we could be… Very soon we could see sedition charges brought in United States Federal Court for the first time in a long time though. Sedition charges are few and far between, of course. Now we’re talking about them in the context of the January 6th raid on the Capitol.

Elie Honig:

Michael Sherwin, federal prosecutor with the Department of Justice gave this interview to 60 minutes, and I want to talk a little bit later about his decision to give that interview, which I think was wildly misguided and inappropriate. But before we get there, I want to talk about the substance. Because, he tipped DOJ’s hand, and then some, about where they are on sedition.

Elie Honig:

He essentially said, I think he all but announced that sedition charges are quite likely forthcoming in the January 6th case. And the first thing I thought was, “Well, gee, does it fit?” Because when people think of sedition they think of, as you said, something massive. Was January 6th massive? Sure, in a certain sense. Was our entire Republic endangered? I don’t know that it was ever seriously in danger of that group taking over the entire apparatus of the United States Government.

Elie Honig:

If you just look at the law, I will say sedition charges do seem to apply here quite strongly, right? Sedition can mean trying to overthrow the government, but it also can mean less things than that. It can mean trying to interfere with the governmental function, trying to take over a federal building, both of which I think are fairly obviously applicable. What’s your view on whether sedition charges, just letter of the law, fit the conduct of at least some of the January 6th rioters?

Eli Nachmany:

I think it might. You’d have to look at what section of the law you’re applying. So there’s, as you mentioned, the broader section and then there’s the more narrow section. But I still think just in terms of what the letter of the law is, there hasn’t been much precedent developed on it. And so the courts have not told us really what the law means and so I think there’s room to make arguments both ways. But, I think you make a compelling point that if you just look at the text of the statute, there may be a case here.

Elie Honig:

And, it is very rarely used? It was charged most recently over a decade ago against a Michigan militia. Think about how different these scenarios are just in terms of the factual circumstances. The last time it was successfully charged was by my old office, the Southern District of New York, in the 90s when they charged Omar Abdel-Rahman known as the “Blind Sheik” with essentially a whole series of terrorist plots to blow up different government buildings, the actual 1993 World Trade Center bombing.

Elie Honig:

So, think about how different all three of those scenarios are. I guess, to some extent they all have the same bottom line. There’s an interesting prosecutorial decision to be made here about whether you add a more aggressive charge that may be more legally debatable on top of your easier charges. Your trespass, your destruction of property. That’s a decision we dealt with all the time as prosecutors.

Elie Honig:

I think in this case, there’s too important of a public interest to be vindicated. I think if sedition charges do fit and I think they will fit at least some of the rioters here, I think prosecutors really have an obligation to bring those charges. Even if they’re a little trickier to prove. What do you make of that?

Eli Nachmany:

Yeah. And I think in any prosecutorial decision, the exercise of discretion depends on the goals you’re trying to advance. As we’ve talked about with this being applied only in some very factually distinct cases, there is some level of uncertainty when you bring a high-power charge like this. Given that it’s been 25 years since the Justice Department has successfully prosecuted a sedition case, you usually would fall back on the charges that are more of a slam dunk. Even if the law textually applies to the facts here, there’s uncertainty. But if you want to make a clear statement for the rule of law, maybe this is the direction you go. I think that’s going to be a decision for the prosecutor to make.

Elie Honig:

And the risk is, you add this sedition charge, which is trickier to prove than let’s say unlawful entry into a federal building. And, you maybe don’t get a conviction on this sedition charge, but you do on the others. I think, look, prosecutors can’t just take the safe road, the easy road. I’m not saying they should overcharge anything, but if the charge fits and the public need is there, and I think it is here, then you charge him.

Elie Honig:

Now, let’s talk a little bit more about Michael Sherwin. Eli, young Eli, let me advise you now… If you ever become a prosecutor, do not do this. Do not do what Michael Sherwin did. When I was a youngster at the SDNY we were trained, they beat it into our heads, we were terrified to the point where if you ever got a call directly from the media, which we did because journalists were hoping to find some young prosecutor who was willing to talk maybe on background… We were trained, if you ever get a call from the media all you say is, “No comment. Call the press office,” click. Right? And then they would call the press office and the press office would say, “No comment,” click.

Elie Honig:

The main reason for that is prosecutors do not make extra judicial statements about the merits of a case. Especially, especially a pending investigation like this. You don’t do it because, first of all, it’s bad form. It’s a bad look. Prosecutors shouldn’t be out there making prognostications and dropping hints in the public about what they might do. You compromise your own investigation by doing that. There’s a reason we prosecutors, grand juries, investigate in secret. You don’t want people to know who you’re looking at, what direction you’re thinking of going.

Elie Honig:

And finally, you could hurt your own case because you are potentially prejudicing your subjects, the people who you’re investigating, who will raise emotion. And they’ve already started to do this in the wake of Michael Sherwin’s comments that, “He’s out there saying things that are not in the public record that could be prejudicial to my client, could be prejudicial when we’re trying to pick a jury someday.”

Elie Honig:

So it was just a complete lapse of judgment or a complete error abuse, really of his position, by Michael Sherwin. He’s now being investigated by DOJ, internally, OPR Office of Professional Responsibility for breaking the rules and I think he will be disciplined. So Eli, let me ask you for your initial reactions to the fact that Michael Sherwin gave this interview as a sitting prosecutor with DOJ. Did it strike you at the time as being anyhow wrong or improper?

Eli Nachmany:

Yes. And Elie, what I’ve come to understand about the way that you develop a prosecutorial strategy is that there are opportunities from time-to-time to engage with the public. For example, Preet Bharara became famous for some of his press conferences that he would give when he would bring charges. So for me, I think setting aside the propriety of what the prosecutor in this case did, it felt premature because there hadn’t actually been charges brought yet. So normally you would wait for the investigation to conclude and you feel like you had the charges.

Eli Nachmany:

Because I mean, just simply announcing to the world, “Hey…” And this, as a general matter in prosecution, “We’re going to bring charges,” or, “We’re thinking about bringing charges,” when the investigation hasn’t concluded and there hasn’t been a formal decision, has serious reputational, economic consequences and many other kinds of consequences for individuals. And, in the corporate context, for corporations too.

Elie Honig:

Two good points there. First of all, it’s good that you have that level of understanding as someone who’s still in law school. Because, it takes a while even as a prosecutor to understand that everything you do has collateral consequences. For the people you’re investigating, for their families, for their employers, for their communities. And you have so much power and if you just throw around ideas and names willy-nilly out in the public, then you’re doing undue damage to those people, to those communities. It’s a serious responsibility that takes a little bit to learn, even as a prosecutor.

Elie Honig:

The second thing is, we prosecutors like to say, “We do our talking in court.” We don’t do our talking to 60 minutes. We do our talking in our indictments, in our statements to juries, in our formal motions that we file with the court. Everything we do is on record. That is fine. And it’s interesting that you raised this idea of the press conference, because prosecutors do sometimes get criticized by defense lawyers for having these press conferences. And of course, Preet didn’t invent them, prosecutors have been doing press conferences for a long time. He was very good at them and drew a lot of attention because the way he did it.

Elie Honig:

But I want to make sure this is understood, literally every word that is said by a prosecutor, in the federal system, certainly in the SDNY, at a press conference is something that is already on the record. That is in the indictment. That is in the complaint. That is in something that you filed in the courtroom.

Elie Honig:

When I say, “Literally,” I mean, literally. I have sat there with Preet and with his predecessors going through every word they would say in the press release, every word they would say in their announcement and they would go, “Where’s this?” And I would say, “It’s on page six of the indictment.” “Where’s that?” “Oh, that’s on page 14 of our bail memo.”

Elie Honig:

So, the point is anything that’s being said at a press conference, done correctly, is something that we’ve already said often in something filed that very day, but we’re not saying anything beyond what’s in the public record. And, these are no longer pending investigations, right? These are people who’ve now been charged and there’s at least been a finding by a grand jury or a judge that there’s Probable Cause they committed a crime. So it’s a little different than getting out there throwing shade at people who have not yet been charged. But that’s a really good observation.

Elie Honig:

Let me run this by you, now. Get your thoughts on this? Defense lawyers do this all the time. They go in front of the cameras, they hold courthouse steps press conferences, they make inflammatory remarks. I mean look, January 6, the lawyer for… I hate to call him “the Shaman,” but you know, this Jacob Chandsley guy with the horns and the fur and all that, his lawyer is doing a full court press tour. He’s out there saying inflammatory things about the charges against his client, why they’re inappropriate, and why he’s being picked on, and why he should be the recipient of sympathy.

Elie Honig:

Defense lawyers do that all the time and nobody really has any problem with it. And they certainly don’t get disciplined by the judge or the bar or anything for doing that. I guess in a sense it feels like a double standard, but also there’s a good argument that it’s a very different situation. Give me your take on that. Why is it okay or should it be okay for defense lawyers to do media tours outside the record, but not prosecutors?

Eli Nachmany:

Elie, I think it is okay and it should be okay. You as a former prosecutor know the power to indict is the power to destroy. We just discussed this with some of the reputational, economic and other collateral consequences that may run from the decision to prosecute or ongoing prosecution. And our Founders recognized this, right? The Bill of Rights established as many procedural protections to check the State’s prosecutorial power, the Fourth Amendment, Fifth Amendment and others in the criminal procedure context.

Eli Nachmany:

But take a look at what happens during the criminal process. If one side wins, the defendant, everyone goes home. If the other side wins, the State takes away somebody’s liberty or imposes some other formal consequence. We talked about some of the more informal consequences, but there are formal consequences to losing a criminal case. So, as you talked about before in terms of the checks on prosecutors, some of this gets worked out their internal procedure, some is constitutional. But I think one of the core rights of the individual in this society, and I think this flows from the Constitutional text, is the right to protect yourself against government infringements.

Elie Honig:

I think that’s exactly right. There is a double standard here, but I say that not by way of complaint. I actually think that’s the right thing for our system. For the reasons you talk about. It really goes back to the old thing, “Better to have a guilty person walk free than to convict an innocent person.” I mean, you have to give extra consideration, extra protections to the defense side.

Elie Honig:

Now look, it used to make me nuts… I had lawyers doing this. I had lawyers out in the media throwing mud at us as prosecutors, accusing us of doing outrageous things that they wouldn’t even have the guts to accuse us of in court, playing up the sympathy card for their client. And it made me crazy because it felt so unfair. But, in the bigger picture, I don’t think you can prevent that unless it gets to an extreme scenario where judges sometimes imposed gag orders, but they’re very reluctant to do that. I think it’s part of the game.

Elie Honig:

And I will tell you, there are various scenarios where the prosecutor has different obligations, different principles, different rules of play than a defense lawyer. I’ll give you a couple of scenarios that come up a lot. Number one, this idea of what we call Brady and Giglio evidence, and that refers to the obligation, the legal obligation that a prosecutor has to turn over evidence that may be helpful to the defendant, that may prove the defendant is in fact not guilty.

Elie Honig:

Now, I don’t believe there is any other brand of lawyer other than a prosecutor that has an affirmative obligation to turn over evidence that is bad for us and good for the other side. Defense lawyers certainly do not have that obligation. I mean, if a defense lawyer found a piece of evidence that was incriminating to his client, not only should he not turn it over, it would be malpractice to call the prosecutor and go, “Hey, I just want you guys to know there’s this piece of evidence. It tends to show my client is guilty.” You’d be disbarred for that.

Elie Honig:

Similarly, in civil practice, if you come across a piece of evidence that’s bad for your side good for the other side, it may come out as part of discovery, but you don’t have an affirmative obligation to say, “Hey, other side, opponent, person on the other side of the V. Here’s something that’s going to help you and hurt me.” Do we bellyache about that a little bit as prosecutors? Yeah, of course. But is it the right and the fair way to do things because of the liberty interest at stake? Absolutely.

Elie Honig:

I’ll give you one other example that’s not quite by the book, but it happens. Defense lawyers at trial often throw in things in their jury addresses that they know will never be in evidence or during closing that they know have not been admitted in evidence.

Elie Honig:

I can’t tell you how many times I’ve seen a defense lawyer stand up in opening or closing and announce to the jury that their client is a father of four and a grandfather of two and he’s suffering with cancer, by the way, and he donates a lot to charity. All of those things are irrelevant, they’re just straight up sympathy plays. None of those things ever come in as evidence, but when defense lawyers do it everyone just says, “What are you going to do?” You can’t stand up as a prosecutor and say, “That’s not in evidence.”

Elie Honig:

If you did the opposite as a prosecutor, if you dropped into a jury on closing facts that you never got into evidence, if you dropped in the fact that there was something negative about the defendant, that he had a drug problem, that he was having an affair, that he had a prior arrest, something like that that was irrelevant and not in evidence and you just drop that into your closing? Oh, God help you. It would be an immediate mistrial. You would be disciplined, all heck would break loose.

Elie Honig:

So again, a double standard, but one that “big picture” doesn’t make me crazy. Did it make me crazy when I was prosecutor? Yes. But is it all fair-game now? I think more or less it is. What’s your thoughts on that, the idea that there is a double standard of sort, but it’s built into our system and it’s probably a good thing?

Eli Nachmany:

I would fully agree with you. And I think in addition to some of the more procedural protections, this also impacts the way courts read laws. In school we’ve learned about something called the canon of lenity and the void for vagueness doctrine. Essentially, these are ways for courts to read laws, in the criminal context usually, in favor of defendants. And there’s a whole body of jurisprudence on this with good reason for it, as you mentioned, because the liberty interest.

Eli Nachmany:

The evidence laws, I think have been developed with a keen focus on, “In terms of the rights of the criminal defendants, how can we be protective in such a way that still allows us to advance the State’s interest of prosecuting wrongdoing,” but also vindicates an interest that the Founders were very concerned with. And one that, still, folks who do Constitutional Law to this day and other types of law have a very strong interest in making sure it’s protected.

Eli Nachmany:

And Elie, I think that raises another question… And we do a lot of this against the backdrop of the trial by jury. Now the open question about how much of the criminal justice system gets worked out through plea bargaining, which I think is a growing question and concern. But in terms of the jury trial, I feel like you always have good stories. So I want to ask you this question, have you ever had to dismiss a juror? And what is that process like?

Elie Honig:

What’s the concern with all this stuff with prosecutors making extra judicial statements to 60 Minutes and elsewhere? The concern is, fundamentally, that you’re potentially contaminating the jury pool. Because, if someday someone gets on a jury in one of these January 6 trials and they think, “Oh gee. But I remember that prosecutor went on 60 Minutes and he said, this. Maybe it’s not in evidence in the courtroom, but I remember seeing that.”

Elie Honig:

And the reality is, we do have some protections in place against that. The jury selection process, the main question that jurors will be asked, especially in a high profile case is, “Have you heard anything about this case? Have you formed any opinions that cannot be moved?” And if and when these January 6th insurrectionists are tried, count on that happening and count on all of them saying, “Of course I’ve heard about this case,” and then we’ll have to get into this next question.

Elie Honig:

I dealt with that quite a bit, because a lot of the cases I did were in the media. Especially the mob cases, especially in New York City. The tabloids, the fold-over newspapers tended to love our cases and put a lot of stuff about my trials in the papers. And we ran into little problems that we were usually able to sort out through jury selection, right?

Elie Honig:

When I tried John Gotti, Jr, a lot of people already had opinions about that. But I’ll tell you one thing that always stuck with me. When I tried John Gotti, Jr., It was the fourth time my office tried him. There were three prior trials way before my time. I got him on the fourth time. And when the jury ended up hanging, it was 6-6, six wanted to convict six one to acquit. And we ended up getting the rare chance to speak with the jury. And the jurors… It was more than one, I don’t remember the exact number, but a couple of the jurors who were on the not guilty side said to us essentially, “Oh, you guys definitely proved your case, but it’s the fourth time he’s being tried. That’s not fair. You can’t try someone four times.”

Elie Honig:

Now, that was never in evidence. They were not supposed to know that it was his fourth trial. Did they know that? Heck yes. I mean, they told us they knew that. Was it from seeing it in the papers? Did they go home and Google it? I don’t know. But that is an extra judicial fact, it was not part of the trial, that they knew, and clearly had probably a determinative impact on at least some of them. So, there is a real risk of that.

Elie Honig:

And again, in our system, is it better that it happens in that scenario where somebody maybe gets off as opposed to convicted? I think that’s preferable to the opposite scenario where a juror votes to convict somebody because they saw something like the Michael Sherwin interview outside of the courtroom. That is the nightmare scenario for us.

Elie Honig:

Since you asked for a war story, I gave you one, but I’m never shy with the old SDNY war stories. I did once have a bizarre situation where we tried another powerful mobster on a murder case and other charges. And, right as the jury started deliberating… So we’ve already finished the trial at this point. One of the jurors sends a note directly to the judge, only from him. And he said, “Judge, this is juror number,” whatever, “and I need to speak with you directly and privately.” And I said, “Oh, this can only be bad.”

Elie Honig:

It turned out that juror said to the judge, “I did a little bit of digging on my own and I learned some stuff about this defendant.” He was already charged with murder, we proved up the murder. But he learned that the defendant, a guy named Angelo Prisco, had this long history and was this very feared guy in the mob.

Elie Honig:

And this juror said to the judge, “Judge, I’m too scared to convict him because I don’t know what he might do to me or my family.” Now, the judge advised us of this and I thought, “Well, this is a good news/bad news scenario. Good news is he obviously wants to convict. He obviously believes Prisco’s guilty. Bad news is he’s too terrified to actually do it.”

Elie Honig:

The kicker was, the judge said, “Did you discuss any of this, what you read, with the jury?” And the guy said, “I might’ve mentioned it to a couple of people.” So now we’ve got multiple jurors potentially contaminated. The judge ended up removing this one juror, letting him out. We had alternates ready, that’s why you have alternates in case you have a scenario like that, so they moved in. And then the judge essentially voir dired, questioned, all the jurors again and reassured them that there’s no risk to you personally and anything you’ve seen outside the courtroom you should disregard.

Elie Honig:

The jury ended up convicting Prisco of murder and other charges. And that became a bit of an appellate issue but the second circuit, the court of appeals, said it was fine the way it was handled. But I guess the point of these little stories is, yeah, this stuff does get through to jurors, especially on high profile cases. And, if and when we have trials relating to January 6th, you bet they’re going to have heard about this. You bet, some of them will have seen the 60 Minutes interview and, you bet, they’ll say they won’t, but I am convinced they will Google. They will research, they’re human beings. So, what do you make of all of that Eli?

Eli Nachmany:

Well, I think there are some things that do impact juries. There are some things that don’t impact juries. There is a good amount discussion among judges of what is the impact actually of a judge’s instruction to a jury to disregard something. And in the case that you just mentioned, there was an instruction, “Hey, disregard it,” and you ended up getting a conviction.

Eli Nachmany:

In a lot of cases the judge will tell you, “Hey, take that out of your mind, put that out of your mind,” but that’s really hard for people in practice to do. So you ask, “Well, what is the information at hand and will it actually have the impact that we fear it will have?” Because, we built up a whole law of evidence to keep certain things out of trials because we either think it’s not reliable. Or, in the context of for example, privileges, spousal privileges, attorney client and whatever else, there are other goals that we’re trying to advance, even in the middle of a trial situation where we’re trying to get the most reliable results.

Elie Honig:

There’s a fascinating question of human psychology built into that, what you just talked about. Which is, when the judge says, “Okay, jury, don’t think about the pink elephant.” All they’re going to do is think about the pink elephant. And I’ll tell you tactically, if you ever end up doing trials… Which I believe you may someday, I can see you in a courtroom… you will consider this. And I’ll give you an example, what I said before. When the defense lawyer stands up at closing and announces that his client has overcome cancer and has donated millions to charity and has this enormous family who loves him and he’s very religious, technically, if you were doing a moot court workshop in law school you would stand up and you would say, “Objection, Your Honor. Facts not in evidence.” And you would probably get a point from your moot court judge, because you’d be right.

Elie Honig:

In the real world you don’t, because you know the judge isn’t going to do anything about it and all you’re going to do is signal to the jury, “This upsets me. I don’t want you to think about that.” If anything, they’re going to snap to attention and go, “Wait, what’s he? What’s he objecting? Oh, okay.” It’s all about having a bit of a poker face and taking yourself outside of what the rules of evidence say and what maybe you learn in your mock trial workshops in law school and getting into real life and real human psychology. And that is part of the reason why I loved doing trials so much and why I find the whole exercise so fascinating. So keep that in mind, Elie, get the points in your moot court. If you do moot court, I don’t want you to lose points from the judges. But when you get into the real world, remember it’s all about actual humans and human psychology.

Eli Nachmany:

Wise Elie, thank you as always for the opportunity. And also just want to give a quick shout out and thank you to your staff who have just been terrific.

Elie Honig:

It’s a good crew. They know what’s up. Eli, thanks very much. And thank you to all our listeners for checking out this episode of Third Degree. Remember, please send us any thoughts or comments or questions at [email protected] Talk to you Monday.

Elie Honig:

Third Degree is presented by CAFE Studios. Your host is Elie Honig. The Executive Producer is Tamara Sepper. The Senior Producer is Adam Waller. The Technical Director is David Tatasciore. The Audio and Music Producer is Nat Weiner. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Eisenman, Chris Boylan, Sean Walsh, and Margo Malley.