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Merrick Garland: The Man (Again) Meets the Moment

Biden’s pick for attorney general is perfectly suited to take on right-wing extremists.

January 7, 2021
garland
Alex Wong/Getty

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.