Inside the prosecution of the Capitol rioters

Until this past Friday, federal prosecutor Michael Sherwin was leading the largest criminal investigation in U.S. history. Sherwin's team has charged hundreds of suspects in January's assault on the Capitol. Sherwin has said little. But Wednesday, before he moved to his next assignment for the Department of Justice, he sat down with us to explain the nationwide dragnet that began after the riot.

Michael Sherwin: As looking eight, nine weeks out from the events, we're over 400 criminal cases, which is a pretty amazing number, I think, in a very limited time frame.

Scott Pelley: 400 defendants?

Michael Sherwin: Correct. 400 defendants. And the bulk of those cases are federal criminal charges, and significant federal felony charges. Five, 10, 20-year penalties. Of those 400 cases, the majority of those, 80, 85%, maybe even 90, you have individuals, both inside and outside the Capitol, that breached the Capitol, trespassed. You also have individuals, roughly over 100, that we've charged with assaulting federal officers and local police officers. The 10% of the cases,  I'll call the more complex conspiracy cases where we do have evidence, it's in the public record where individual militia groups from different facets: Oath Keepers, Three Percenters, Proud Boys, did have a plan. We don't know what the full plan is, to come to D.C., organize, and breach the Capitol in some manner.

Michael Sherwin was an eyewitness to that alleged plan. As acting U.S. attorney for the District of Columbia-- the top prosecutor-- he dressed that morning in running clothes and joined D.C. Police at the president's rally.

Michael Sherwin: And I wanted to see the crowd, gauge the temperature of the crowd, it was like a carnival environment. People were selling shirts, popcorn, cotton candy, I saw hot dogs. As the morning progressed, I noticed though there were some people that weren't the typical, like, carnival-type people. I noticed there were some people in tactical gear. They were tacked up with Kevlar vests. They had the military helmets on. Those individuals, I noticed, left the speeches early. 

They headed to the Capitol and Sherwin walked with them.

Michael Sherwin: You could see it was getting more riled up. And more people with bullhorns chanting and yelling. And it became more aggressive. Where it was initially pro-Trump, it digressed to anti-government, anti-Congress, anti-institutional. And then I eventually saw people climbing the scaffolding.  The scaffolding was being set up for the inauguration. When I saw people climbing up the scaffolding, hanging from it, hanging flags, I was like, "This is going bad fast."

Michael Sherwin, 49, is a federal prosecutor from Miami. After successful terrorism and espionage cases, the Trump administration asked him to fill a temporary vacancy leading the Washington U.S. Attorney's Office. That's how, on January 6th, Sherwin found himself launching a 50-state manhunt — made urgent by what was coming in just two weeks.

Michael Sherwin: After the 6th, we had an inauguration on the 20th. So I wanted to ensure, and our office wanted to ensure that there was shock and awe that we could charge as many people as possible before the 20th. And it worked because we saw through media posts that people were afraid to come back to D.C. because they're like, "If we go there, we're gonna get charged." 

More than 100 arrests were made before the inauguration.

Michael Sherwin: So the first people we went after, I'm gonna call the internet stars, right? The low-hanging fruit. The 'zip-tie guy,' the 'rebel flag guy,' the 'Camp Auschwitz guy.' We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.

Sherwin told us the most serious cases, so far, focus on about two dozen members of far-right militias.

Scott Pelley: Was there a premeditated plan to breach the Capitol?

Michael Sherwin: That's what we're trying to determine right now. We've charged multiple conspiracy cases, and some of those involve single militia groups, some of them involve multiple militia groups. For example, individuals from Ohio militia were coordinating with the-- a Virginia militia group of Oath Keepers, talking about coming to the capital region, talking about-- no specific communication about breaching the Capitol-- but talking about going there, taking back the House. Talking about stopping the steal. Talking about how they need a show of force in DC. And we see that in December.  

At the center of one video are members of the Oath Keepers in military gear. Michael Sherwin says their tight, single-file formation is evidence of a military-style assault.

Michael Sherwin: That's what you learn in close, you know, order combat, how you stay with your team to-- breach a room where maybe there's a terrorist, to breach a room where maybe there was an Al Qaeda operative.  

Scott Pelley: The infantry calls it a stack.

Michael Sherwin: Correct. A stack or a Ranger File, a column, a close-quarter combat column going up that staircase.

Scott Pelley: The Oath Keepers in that stack, what have they been charged with?

Michael Sherwin: The most significant charge is obstruction. That's a 20-year felony. They breached the Capitol with the intent, the goal to obstruct official proceedings, the counts, the Electoral College count.

Defense attorneys for some Oath Keepers declined to comment. Others told us their clients are innocent.

Prosecutors say 139 police officers were assaulted. Brian Sicknick died the next day. This month, Sherwin charged two men with assaulting Sicknick with a spray designed to repel bears. 

Scott Pelley: The medical examiner has not yet determined how Officer Sicknick died. If the medical examiner determines that his death was directly related to the bear spray would you imagine murder charges at that point?

Michael Sherwin: If evidence directly relates that chemical to his death, yeah. We have causation, we have a link. Yes. In that scenario, correct, that's a murder case.

There could have been many more deaths, but Sherwin says two dangerous plots failed. 

Scott Pelley: What were the intentions of the suspect who was found with the 11 Molotov cocktail bombs?

Michael Sherwin: So you're referring, Scott, to Lonnie Coffman. And I think this is emblematic, that that day, as bad as it was, could have been a lot worse. It's actually amazing more people weren't killed. We found ammunition in his vehicle. And also, in the bed of the vehicle were found 11 Molotov cocktails. They were filled with gasoline and Styrofoam. He put Styrofoam in those, according to the ATF, because when you throw those, when they explode, the Styrofoam will stick to you and act like napalm.

Coffman's lawyer did not respond to us. In the other plot, the FBI is looking for a person seen near pipe bombs that were planted by the Capitol.

Scott Pelley: Why didn't they explode?

Michael Sherwin: It appears they weren't armed properly. And there could be a whole host of reasons. But they were not hoax devices, they were real devices.

There are many lesser cases, about 140 or so, involving charges such as trespassing. Brent Mayr is a criminal defense attorney who represents one of the defendants.  

Scott Pelley: What are some of the possible defenses that you expect to see in these many cases?

Brent Mayr: So the first one is gonna be a lack of criminal intent.  a person may have gone into the Capitol, but they didn't go into the Capitol intending to obstruct or to impede or to interfere or to damage or anything else like that. I think that's gonna be the one most common defense.

Mayr's client, Chris Grider is a 39-year-old Texas wine maker. He's wearing a yellow "don't tread on me" flag.

Scott Pelley: Why does intent matter?

Brent Mayr: Intent is a critical element in almost every single criminal offense, okay? We talk about it in the laws in terms of the mens rea, the culpable mental state. The person intending to do something that is against the law. 

Scott Pelley: Look, your client, Mr. Grider, was at the head of the mob that was attacking the entrance to the House Chamber. He appears to give a man a helmet, which is used to smash the window there, just before Ashli Babbitt is shot to death. What is his defense?

Brent Mayr: The images that you see in the video only tell part of the story. That's the biggest problem and complaint that we have with the government, when Chris is approaching the door, he's not yelling at the police officers. He's not-- he's not yelling, "Kill Pence." He's not yelling obscenities. 

Scott Pelley: But, look, when the man is having trouble smashing through the door, your client hands him a helmet.

Brent Mayr: At that point, it was, take the helmet and get outta here. You know, "Take the helmet. I need to get out of here." If Chris wanted to do damage, he could've done it his self. 

Grider faces charges including obstruction, destruction of property and disorderly conduct, though prosecutor Michael Sherwin charged Grider, he agrees not everyone that day had criminal intent.  

Michael Sherwin: We have to protect the First Amendment. The great majority of the people there were protesters. When do you cross that line? You cross the line when you cross a police line aggressively. You throw something at a cop. You hit a cop. You go into a restricted area, knowing you're not supposed to be there. These are the plus factors that cross that line from a protester to a rioter.

Scott Pelley: Has the role of former President Trump been part of your investigation?

Michael Sherwin:   It's unequivocal that Trump was the magnet that brought the people to D.C. on the 6th. Now the question is, is he criminally culpable for everything that happened during the siege, during the breach? What I could tell you is this, based upon, again, what we see in the public record. And what we see in public statements in court. We have plenty of people-- we have soccer moms from Ohio that were arrested saying, "Well, I did this because my president said I had to take back our house." That moves the needle towards that direction. Maybe the president is culpable for those actions. But also, you see in the public record too militia members saying, "You know what? We did this because Trump just talks a big game. He's just all talk. We did what he wouldn't do."

Scott Pelley: In short, you have investigators looking into the president's role?

Michael Sherwin: We have people looking at everything, correct. Everything's being looked at.

But, so far, prosecutors have not charged sedition--attempting to overthrow the government.

Scott Pelley: I'm not a lawyer, but the way I read the sedition statute, it says that, "Sedition occurs when anyone opposes by force the authority of the United States, or by force hinders or delays the execution of any law of the United States." Seems like a very low bar, and I wonder why you're not charging that now?

Michael Sherwin: Okay, so I don't think it's a low bar, Scott, but I will tell you this. I personally believe the evidence is trending towards that, and probably meets those elements. 

Scott Pelley: Do you anticipate sedition charges against some of these suspects?

Michael Sherwin: I believe the facts do support those charges. And I think that, as we go forward, more facts will support that, Scott.

The Biden administration asked Michael Sherwin to stay through the transition. Now, he plans to return to the Miami U.S. Attorney's Office.

Scott Pelley: What do you want people to understand about this investigation?

Michael Sherwin: That we tried to move quickly to ensure that there is trust in the rule of law. You are gonna be charged based upon your conduct and your conduct only. Not what you may have posted about the election, not what you may have posted about different political views. The world looks to us for the rule of law and order and democracy. And that was shattered, I think, on that day. And we have to build ourselves up again. The only way to build ourselves up again is the equal application of the law, to show the rule of law is gonna treat these people fairly under the law.

Produced by Pat Milton and Aaron Weisz. Associate producers, Ian Flickinger and Sheena Samu. Edited by Michael Mongulla. Assistant editor, Aisha Crespo.