The confirmation that Judge Merrick Garland never got from the Senate roughly half a decade ago has finally arrived, with a twist.
Now, instead of aspiring to the Supreme Court, Garland is aiming to become the top prosecutor in the United States, a role that led him to release a statement reflecting on the origins of the Department of Justice and a career that began in countering extremism.
As his opening statement makes clear, both the agency’s and personal history have special resonance now.
“Celebrating DOJ’s 150th year reminds us of the origins of the Department, which was founded during Reconstruction, in the aftermath of the Civil War, to secure the civil rights promised by the 13th, 14th and 15th Amendments,” Garland wrote in his opening remarks. “The first Attorney General appointed by President Grant to head the new Department led it in a concerted battle to protect black voting rights from the violence of white supremacists, successfully prosecuting hundreds of cases against members of the Ku Klux Klan.”
Civil lawsuits alleging violations of the Ku Klux Klan Act have been increasingly filed before and after the 2020 election, against former President Trump, his allies and his supporters.
Before becoming a federal judge, Garland served as the lead prosecutor in the Oklahoma City bombing cases, including that of Timothy McVeigh. In their opening remarks, both the Senate Judiciary Commitee’s Chairman Dick Durbin (D-Ill.) and top Republican, Sen. Chuck Grassley (R-Iowa), brought up that experience in their opening remarks.
“You know what it’s like to confront the specter of domestic terrorism,” Durbin told the judge. “You led the investigation and prosecution of the Oklahoma City bombing and, in doing so, helped make this nation safer and bring some measure of peace and healing to the victims and their families.”
Garland’s fellow prosecutor in that case, attorney Aitan Goelman, spoke at length about the resonance of that case to the Capitol insurrection in the debut episode of Law&Crime’s podcast “Objections.”
“There’s no question that for anybody who was part of the Oklahoma Bombing Task Force, that was a formative experience,” Goelman said on that podcast. “And I think that Merrick will take the threat of extremism and militant violence, seriously, even if it’s not from a foreign source.”
The parallels were also a theme of Garland’s opening remarks.
“From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government,” Garland wrote. “If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6—a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.”
Throughout the proceedings, Democrats sought to contrast Garland as an antidote to the prior administration’s attacks on the Justice Department’s independence, turning the page from former President Donald Trump’s loyalists like ex-Attorney General Bill Barr with a judge widely praised by both parties.
“Too many in the Department’s senior roles cast aside the rule of law,” Durbin noted. “Trump appointees in the Department sidelined career public servants—from line attorneys to FBI agents—limiting their roles, disregarding their nonpartisan input, overriding their professional judgments, and falsely accusing them of being members of the ‘deep state.'”
Durbin added that the 2020 election brought this trend “to the brink.”
“In fact, as we learned after President Biden’s inauguration, a senior official in the Trump Justice Department, Jeffrey Clark, plotted with President Trump for one final stab at the results of the 2020 election,” the Illinois Democrat noted. “They were thwarted at the last minute by Justice Department attorneys who threatened to resign en masse rather than join in the effort.”
Pressing Garland on the subject of independence, Grassley asked whether the judge had spoken to President Joe Biden about the topic of his son: Hunter, a lightning rod for Republican criticism in unrelenting investigations into unproven allegations of corruption in Ukraine.
Garland’s response was unequivocal: “The answer to your question is ‘no.'”
The focus in Garland’s speech on white supremacists and violent extremists gives special resonance to the late Supreme Court justice he chose to quote in the conclusion of that statement: Robert Jackson, who served as the chief U.S. prosecutor during the Nuremberg trials.
Later becoming a U.S. Attorney General and presiding over the highest court of the land, Justice Jackson reflected upon the awesome power that a prosecutor has later in his life.
“The prosecutor has more control over life, liberty, and reputation than any other person in America,” Jackson said, in remarks quoted by Garland. “[The prosecutor’s] discretion is tremendous…. While [prosecutors] at [their] best are one of the most beneficent forces in our society, when [they] act from malice or other base motives, [they are] one of the worst.”
“The citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches [the] task with humility,” Jackson continued.
Goelman had been quick to note that Garland’s experience fighting extremism for the U.S. government pre-dates even the Oklahoma City bombing.
“I think Merrick was also around during Waco, and I think that that has informed his worldview because it has to,” Goelman told Law&Crime. “But I think that the reason that Judge Garland is such an inspired choice isn’t directly connected to the fact that he was kind of the overseer of the Oklahoma bombing prosecution team. I think that he is an inspired choice because he’s really the Attorney General that the Department and the country needs right now on a broader level. He’s very much of a lawyer’s lawyer he very much. Follow the facts and apply the law, where they are. He’s the least political D.C. circuit judge that you can find.”
Former President Barack Obama’s attempt to nominate Garland to the Supreme Court hit an immovable roadblock named then-Senate Majority Leader Mitch McConnell, who blocked a confirmation hearing from taking place where the widely respected judge was expected to easily pass a vote. Now, with the Judiciary Committee in the control of Senator Dick Durbin, there was no question that a nomination hearing would be fated.
Republicans are widely expected to press Garland to investigate New York Gov. Andrew Cuomo, who is facing a scandal after a top aide admitted to withholding numbers of coronavirus cases in nursing homes. The hearing is expended to last two days.
Read Garland’s opening remarks below:
(Photo by Chip Somodevilla/Getty Images)
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