Merrick Garland made his bones at the Justice Department 25 years ago when he coordinated the federal government’s prosecution against Timothy McVeigh and Terry Nichols for the Oklahoma City bombing, which killed 168 people. He did a masterful job. The trials of the two domestic terrorists, which took place in Denver, were orderly, dignified, and in the best traditions of law and order. The convictions and sentences which soon followed were cathartic and they helped the nation begin to heal from the wounds torn open at the Alfred P. Murrah federal building on April 19, 1995.
Now the trumpet summons Garland again in circumstances remarkably similar to those he faced a generation ago. President-Elect Joe Biden reportedly has tapped Garland to leave his post as a federal judge on the DC Circuit Court of Appeals to take over the Justice Department. Garland will make an excellent attorney general for many obvious reasons and a few discrete ones. Most importantly, though, in the wake of the Trump riot yesterday at the Capitol, Garland is the perfect candidate to take on the current right-wing extremist threat roiled to deadly action by the seditionist Donald Trump on his way out of office.
A million words have already been written about whether and to what extent the Biden administration’s Justice Department should investigate and prosecute any criminal conspiracies run out of the White House for the past four years. Of course it should. There must be a reckoning. And Garland is perfect for that role. His experience as a prosecutor and judge — and his lack of experience as an elected official — make him well-suited to handle the political blowback he’ll receive when the federal indictments start flying toward former Trump administration officials. Let a thousand perp walks bloom!
But the work of holding Trump officials to account may now have to take a back seat to the daunting work of consequences for the hundreds of rioters who desecrated the Capitol Wednesday at the urging of Trump and his Republican lackeys. The insurrectionists all violated federal law — trespassing, conspiracy, etc. — and they all should be prosecuted even if it takes four years of a Biden administration to do so. Garland knows how to accomplish this and, perhaps just as important, knows how to accomplish it in a manner that will instill (or restore) confidence in the nation’s criminal justice system.
Few people today remember how important the Oklahoma City bombing trials were to the restoration of faith in American justice following the O.J. Simpson criminal trial. Or how important the bombing trials were in sending a message to the right-wing extremists of the time that their fantasies of revolution would end with them waking up disgraced and detested in a federal prison cell. Garland played all the right notes then and will be in a position to send all the right notes now to our current crop of extremists. He will be quiet, dignified, and ruthless and that’s precisely the right way to break the back of the current movement.
Garland will have a few advantages as he takes on the mob. He’ll have a Democratic Congress to support Justice Department initiatives against the extremists whose leader will no longer be in the White House. He’ll have his own crop of U.S. attorneys to work with, men and women who are not beholden to Donald Trump. He’ll have the attention of federal law enforcement officials rightfully embarrassed by the atrocious police response to the seditionists as they took over the Capitol. And he’ll have the federal judiciary on his side because federal prosecutors almost always have the federal judiciary on his side.
He’ll also have popular support for his work. Very few people today remember that the Oklahoma City bombing devastated the right-wing militia movement of its time. In the wake of the attack, membership in militias dropped sharply and whatever political support right-wing extremists had then — from white Republican lawmakers, of course — dissolved. It is likely, I think, that the storming of the Capitol by Trump’s mob will have a similar impact today on the modern movement, even though it arguably is better situated to weather the legal and political storm that’s about to hit it.
First and essentially, the current movement has a leader, Trump, that McVeigh’s movement did not. There was no social media when McVeigh conspired with Nichols and “others unknown.” Nor was there during McVeigh’s era a collection of alternative-universe media organizations available to amplify the misinformation and disinformation (and white supremacy) that marks these movements. The sad realities of our time will make Garland’s work harder. So will the fact that the insurrectionists still have legislative support among congressional Republicans despite the American carnage we all witnessed yesterday.
All this may be true and yet the history of these calamitous events teaches us that domestic terrorists tend to “pop their own balloons” (to paraphrase one law enforcement expert this morning) when their threatening words devolve into violence and destruction. Anyone want to argue that federal juries are going to be less sympathetic to pro-Trump anarchists today than they were last week? Anyone want to argue that there isn’t a significant subset of Republican voters who aren’t horrified at the lawlessness done in their names? I am not saying the fantasy world in which Trump’s insurrectionists live will melt away. I am saying there will be less indulgence of those fantasies on the part of the nation’s justice systems.
There will be plenty of time to debate Garland’s commitment to criminal justice reform and his views on the death penalty when he takes over the Justice Department. We can talk later about the ways in which President Biden will benefit from replacing Garland on the second most important appeals court in the country with a younger, more progressive, jurist. We can leave for another day the details of how he’ll restore the integrity and credibility of a Justice Department laid to waste by political hacks like Jeff Sessions and William Barr. For now, it’s enough to say that Merrick Garland will soon be able to go after the people who disgraced themselves and the nation at the Capitol Wednesday.
The views expressed are the author’s own and not necessarily those of the Brennan Center.
