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Bill Barr Intervened to Overrule Federal Prosecutor Who Said D.C. Police Arrested Protesters Without Any Evidence of Wrongdoing

The top federal prosecutor in Washington, D.C. wrote a letter to the city’s mayor earlier this month explicitly declaring that local police had arrested more than 50 protesters without any evidence of wrongdoing, only to walk back his comments two days later. But new reporting from the New York Times suggests U.S. Attorney Michael Sherwin’s change of heart can be attributed to a U.S. Attorney General Bill Barr, who intervened in the matter to have Sherwin publicly concede that the officers didn’t actually do anything wrong.

In a Sept. 1 letter to Mayor Muriel Bowser (D), who had criticized federal prosecutors for not bringing charges against protesters arrested for rioting, Sherwin pointed out that police made those arrests without providing any actual evidence of wrongdoing.

“As I am sure you are aware, without some evidence to establish probable cause of a particular arrestee’s criminal conduct-e.g., a police officer’s observation or video footage of the alleged crime-we cannot bring federal charges. Surely, by your comments, you are not suggesting that this Office skirt constitutional protections and due process,” he wrote. “The ‘42 rioters’ were arrested as a collective by MPD and presented to the Office without any articulable facts linking criminal conduct to each individual arrested. Simply put, we cannot charge crimes on the basis of mere presence or guilt by association.”

The next day, Sherwin met with Barr and D.C. Police Chief Peter Newsham.

“The meeting grew heated, but ultimately, Mr. Sherwin backed down, according to three people familiar with the encounter,” the Times reported Friday evening. “Mr. Barr told Mr. Sherwin to write a letter that said he had not meant to imply that the police had acted unlawfully.”

“You should not take my letter of September 1, 2020 as suggesting that there had been no probable cause for the arrests,” Sherwin wrote, per Barr’s alleged directive, in the Sept. 3 letter. “That was not the [Justice] Department’s position. Rather the concern was that we needed certain additional information to be reflected in the supporting affidavits to proceed with criminal charges.”

Barr’s reported intervention notably aligned with President Donald Trump’s decision to crack down on protests in Democratic cities. The same day Barr met with Sherwin, Trump issued a memo declaring that the Attorney General would be looking into withholding federal funding from cities deemed “anarchist jurisdictions.” The DOJ last week announced that three Democratically-controlled cities – New York, Portland, and Seattle – had been given the anarchist designation.

As previously reported by Law&Crime, Barr’s allegedly political motivations led Assistant U.S. Attorney for the District of Massachusetts James D. Herbert to publicly rebuke his boss this week. Hebert said Barr has acted like “his job is to serve only the political interests” of President Trump, concluding that he had “brought shame” to the office of the Attorney General.

[image via Chip Somodevilla/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.