Merrick Garland would need to restore DOJ amid Capitol investigation

WASHINGTON— Before Jan. 6, the challenge awaiting Joe Biden’s nominee for attorney general was nothing short of daunting.

No institution more embodied former President Donald Trump’s efforts to bend the government to his political will than the Justice Department. Even federal judges questionedthe actions taken by Trump’s Attorney General William Barr in favor of allies of the then-president.

Yet on the day before Biden formally nominated appellate court Judge Merrick Garland to serve as the nation’s chief law enforcement officer – when Trump supporters stormed the Capitol – the formidable job of restoring the department’s institutional integrity only got bigger.

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Pending Senate confirmation, Garland will be instantly tasked with managing a sprawling investigation into the Capitol siege that left five dead. Federal authorities have identified more than 400 suspects, while laying bare a long-simmering threat posed by domestic extremists. 

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In addition to confronting the menace within, Garland also could be faced with increasingly difficult questions rising from the Capitol inquiry, including whether to pursue the former president for inciting an insurrection. Trump is awaiting a Senate trial following his impeachment in the House for provoking the Jan. 6 attack.

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Not since Watergate, analysts said, has an incoming attorney general taken on such a dual burden of reclaiming Justice’s independence from the White House while resetting the department’s law enforcement mission.

Since Garland’s nomination, Democrats — and some Republicans — have expressed rare agreement that the judge may be uniquely suited for the job and the uncertain times.

Michael Mukasey, who served as attorney general during the George W. Bush administration, lauded Garland’s nomination citing the judge’s “superb intellect and temperament.”

“He is smart, calm and principled,” Mukasey said. “Of all the people considered for this nomination, he is the class of the field. But he is walking into a very difficult job.”

Indeed, there is little dispute about the enormity of the the task, and the urgency required to address it.

“Judge Garland can restore confidence in the department by pursuing the mission itself,” said Jamie Gorelick, a former deputy attorney general in the Clinton administration who worked closely with Garland at Justice. “Judge Garland will be guided only by the facts and the law.”

‘Personification of justice’ in a time of terror and division

The last time the country was forced to confront such a grave domestic threat, Merrick Garland was a young Justice Department official repeatedly thrust into the breach by then-Attorney General Janet Reno.

Garland, then a top aide to Gorelick, was tapped to play major roles in the 1995 Oklahoma City bombing investigation, which still stands as the deadliest domestic terrorist attack in U.S. history; and the 1996 prosecution of Unabomber Ted Kaczynski.

At the time, the damage inflicted by McVeigh represented the manifestation of deep political and social divisions in the country – with striking parallels to the domestic volatility that spawned the Capitol siege Jan. 6, more than 25 years later.

The experience, analysts said, makes Garland now a natural choice to reset the direction of federal law enforcement that since 9/11 has been consumed by the international terror threat.

“This is a man who saw the country at a time of enormous division and who then offered clear guidance on how to respond,” said Larry Mackey, one of the lead federal prosecutors on the Oklahoma City bombing team that secured the convictions of Timothy McVeigh and accomplice Terry Nichols.

McVeigh and Nichols, former Army buddies, were driven to avenge the government’s 1993 response to the deadly siege of the Branch Davidian compound in Waco, Texas, which left 75 dead. At the time, an active anti-government movement was building across the country, with militia and so-called “patriot” groups representing the face of that campaign.

According to the Southern Poverty Law Center, which has long tracked extremist activity, the anti-government movement included 858 groups by 1996, the year after the Oklahoma City bombing. In 2019 it identified 576 such groups.

The bombing of the federal building, which left 168 dead, was intended as a first shot in a citizens’ revolt against what McVeigh, who was executed in 2001, believed was an oppressive government.

“In 1995, Merrick Garland’s direction was this: ‘Let’s do justice first; our system will prevail,'” Mackey said. “There are a number of similarities between 1995 and now. I think it’s going to take someone like Merrick Garland to help heal by applying justice equally. He exudes principle; he is the personification of justice.”

Former President Barack Obama echoed Mackey’s confidence when he nominated Garland to the Supreme Court in 2016, following the sudden death of Associate Justice Antonin Scalia. Garland’s nomination was ultimately blocked by the Republican-controlled Senate, but during a White House Rose Garden ceremony announcing the nomination, Obama recounted how Oklahoma City had left a lasting imprint on the nominee.

Obama recalled Garland’s practice of carrying the program from the Oklahoma City memorial service, listing all 168 victims, in his briefcase as a daily reminder of the task at hand, quoting Garland as once describing the experience as “the most important thing” he had ever done.

“There were hard decisions to make virtually every day,” Gorelick said in a previous interview with USA TODAY, referring to the Oklahoma case. “Attorney General Reno wanted the investigation and prosecution to be a showcase of the justice system. And he (Garland) worked hard to make that happen.”

‘Kick the FBI in the pants’

Chris Swecker, a former chief of the FBI’s Criminal Division who led the search for 1996 Olympic Park bomber Eric Rudolph, said the continuing Capitol investigation stands as an “opportunity” for the Justice Department and the FBI to emerge from a dark period when their very missions were called into question by former President Trump.

Trump, long suspicious of the FBI and its pursuit of allegations that Russia aided his 2016 election, fired then Director James Comey in 2017 and later seized on findings by Justice’s inspector general in 2019 that the bureau mishandled surveillance requests for former Trump campaign adviser Carter Page during the early months of the Russia investigation.

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“I’m tired of defending the Justice Department and the FBI,” said Swecker, referring to Garland as a “good match” for the job at a particularly fraught time. “I think Garland is a good pick. I’d love to see the new AG kick the FBI in the pants.

“This is an opportunity to show off what the agency can do,” Swecker said, referring to the Capitol investigation. “And they should take the opportunity to do it.”

At the same time, Swecker cautioned that Garland will have to strike a balance at Justice so that federal law enforcement’s pursuit of domestic terrorism does not come at the expense of the continuing international threat.

“Clearly, there has been a resurgence in the domestic threat; the pace and tempo reminds me of the ’90s,” he said. “But there has to be a guard against a dramatic swing to a singular focus on the domestic side.” 

Beyond the Capitol

Garland also is expected to be pressed on a blizzard of unrelated questions, including how Justice will resolve a pending tax investigation into President Biden’s son, Hunter Biden, and a separate inquiry involving Trump’s personal attorney Rudy Giuliani, whose dealings in Ukraine have been investigated by federal prosecutors in New York.

Last week, the Justice’s inspector general also launched an inquiry to determine if current or former department officials improperly sought to “alter the outcome of the 2020 presidential election” in favor of Trump. 

The announcement followed recent disclosures that Trump considered firing acting Attorney General Jeffrey Rosen during the last weeks of the president’s administration in an effort to replace him with a loyalist to pursue challenges to the election of President Biden. 

“His (Garland’s) job could become much more complicated very quickly,” said University of Notre Dame law professor Jimmy Gurule, a former Justice official in the George H.W. Bush administration. “Whatever he does could make Biden’s job much more difficult.”

Biden, meanwhile, has signaled that Garland will be given broad authority, independent from the political interests of the White House.

“I want to be clear to those who lead this department (about) who you will serve,” Biden said when introducing Garland as his nominee Jan. 7. “You won’t work for me. You are not the president or the vice president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation, to guarantee justice.” 

‘Among the giants’?

Soon after Biden was officially declared president-elect, Garland was immediately singled out as a promising candidate to lead the Justice Department, albeit by an unlikely source.

Attorney Stephen Jones, who represented McVeigh, the Oklahoma City bomber, penned a three-page letter to the Biden transition team describing Garland as singularly worthy of the nomination.

“Of the persons most prominently mentioned for attorney general in your administration, in my judgment Judge Garland’s professionalism stands shoulders above any of them,” Jones wrote, noting his Republican pedigree.

When Garland was nominated to the Supreme Court in 2016, the attorney also provided an unrestrained endorsement of the then-nominee.   

Jones said Garland’s nomination as attorney general would “not only serve the interest of restoring the credibility and integrity of the Department of Justice but would right a grievous political wrong,” referring to Garland’s blocked nomination to the Supreme Court. 

“He will rank, if appointed attorney general, among the giants who have held the office,” the attorney wrote.