Merrick Garland's handling of Oklahoma City bombing helped prepare him to take on domestic terrorism - The Washington Post
Category: News & Politics
Via: jbb • last year • 0 commentsBy: Matt Zapotosky and Ann E. Marimow (Washington Post)
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By Matt Zapotosky and Ann E. MarimowFebruary 19, 2021 at 10:00 a.m. EST Comment on this storyComment Gift Article Share
The truck bomb leveled a section of the Alfred P. Murrah Federal Building in downtown Oklahoma City, killing 168 and injuring hundreds more in one of the deadliest domestic terrorist attacks on U.S. soil. But as Merrick Garland huddled with the lead prosecutor on the case, he urged caution in presenting the massive amount of evidence from the wreckage.
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"Do not bury the crime in the clutter," he said.
Garland, then a top Justice Department official, was encouraging prosecutors to speed the trial along and jettison superfluous findings in their case against Timothy McVeigh, who was convicted of carrying out the 1995 attack and executed in 2001, said Joe Hartzler, the team's lead attorney. Hartzler said he found the advice so compelling that he wrote the words on a sheet of paper and hung it on an office wall as a rallying cry for his team.
More than two decades later, Garland, 68, is preparing to lead the Justice Department as attorney general and facing a domestic terrorism threat that has metastasized, with white supremacists and conspiracy-minded anti-government types emboldened by their acknowledgment from former president Donald Trump.
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Those who worked with Garland on the Oklahoma City case — and the prosecution of another notorious domestic terrorist known as the Unabomber — say the experiences shaped him, and make him well-positioned to confront the current threat.
"This almost feels like a precursor. How much more experience could you possibly have in domestic terrorism?" said Donna Bucella, a former Justice Department official who, like Garland, was sent to Oklahoma City in the attack's aftermath to help manage law enforcement's response. "He'll be very methodical. I think he'll demand it's being done the right way."
Garland, who has spent the past two decades as a federal appellate judge in D.C., is scheduled to appear before the Senate Judiciary Committee on Feb. 22 for a confirmation hearing, where he will face tough questions about how he would handle the threat of domestic terrorism and other politically sensitive matters.
As a judge, Garland, who declined to be interviewed for this story, was known as a moderate with a knack for building consensus. Although Senate Republicans famously refused to even consider his nomination for a Supreme Court seat in 2016, he is widely expected to be confirmed as attorney general with bipartisan support.
Garland will face the immediate task of overseeing hundreds of cases stemming from the Capitol riot on Jan. 6 — which led to Trump's second impeachment. Democrats are likely to press him on his willingness to investigate or prosecute Trump and his allies in connection with inciting the rioters, while Republicans will seek to ensure that he wouldn't use the Justice Department's muscle to tamp down conservative ideas.
In a written copy of his opening statement to the Senate Judiciary Committee, Garland noted both his experience in Oklahoma City and the Jan. 6 attack on the Capitol.
"150 years after the Department's founding, battling extremist attacks on our democratic institutions also remains central to its mission," he said in the statement.
President Biden recently tasked the director of national intelligence, in coordination with the FBI and the Department of Homeland Security, with compiling a comprehensive threat assessment on violent domestic extremism. The National Security Council also is reviewing policy to determine whether more can be done to mitigate the threat. Garland and the Justice Department will play a critical role in both efforts, as they will be responsible for investigating and prosecuting possible domestic terrorists nationwide, while balancing concerns about civil liberties and free speech rights.
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"If you are a good steward of the Department of Justice, you will be very cognizant of the swings that we've had in this country between liberty and security," said Jamie Gorelick, a former deputy attorney general who worked with Garland in the 1990s. "And one of the things that this country is going to get with a Merrick Garland attorney generalship is someone who understands those swings, and understands the need to respect the need for security, and to respect our civil liberties."
In his Senate questionnaire, Garland said the most important cases he worked on included the prosecution of Unabomber Theodore Kaczynski, who carried out 16 mail bombings over 17 years, killing three and injuring scores more, and that of McVeigh, a former Army sergeant who came to hate the U.S. government and identify with far-right militia types.
"This is the central thing, the most significant thing I worked on," Garland said in a 2013 oral history for the Oklahoma City National Memorial & Museum. "I was able to make the biggest personal contribution to something. Lots of things lawyers work on they don't feel like — in the end you don't know whether it makes any difference or not. And I think other people could have done the same, but I think that being there makes you feel like you had a role to play in the investigation, helping pull people together, and it's a very satisfying feeling for a lawyer."
Gorelick said she recalled sitting in a Justice Department office with Garland, who was then her top deputy, and watching television footage of first responders carrying wounded or dead children out of the wreckage. "He just said, 'I've got to go. Please send me,' " Gorelick said.
On his first night in Oklahoma City, Garland drove to the blast site. It looked like a war zone. Broken windows, crumpled brick and a gaping hole where the building had stood.
"The first time you see the building, and you see it not just on paper described and not just on CNN, but in front of you, it's just the enormity of what happened. It was just incredibly striking," Garland said in his interview for the oral history project.
The most devastating part: the site of the building's day-care center.
"There was nothing there. It was just a big, empty, concave hole," Garland, who at the time of the bombing was a father of two young children, said while becoming emotional as he described the experience.
Early in the investigation, Garland served as supervisor and line prosecutor, presenting arguments at an initial hearing on the case even as he coordinated the sprawling, multistate investigation. Because of the damage in Oklahoma City, McVeigh's initial proceeding was at Tinker Air Force Base; those involved recalled Garland pushing for media access, despite the logistical challenges.
"You know, it's going to be bad enough they're going to conspiracy theories," Garland recalled saying at the time. "The defendant is going to complain he didn't get an open hearing. The law requires an open hearing."
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Garland said that he initially feared, because of reports of additional threats and truck bombs, that the Oklahoma City explosion was just the beginning of "some kind of rebellion or war." Larry Mackey, a prosecutor on the McVeigh case and that of co-conspirator Terry Nichols, said Garland encouraged investigators to run down possible connections to militia groups — cognizant that the case had greater meaning for the nation.
"His message — and we certainly understood and believed it, and I think ultimately the jury did as well — [was] that we're going to respond to terrorism by relying on the institutions that made this country so great," Mackey said. "Merrick's theme — and the prosecution's theme — was, 'We're going to be greater than they are.' "
Robert Cleary, the lead prosecutor on the Unabomber case, said Garland brought "a laserlike focus on the issues of gravest importance."
"Given the times we're in, I think you're going to see this as a very real priority for him, and I think you'll see him and his inner circle dedicating a lot of resources to combating domestic and even international terrorism as well," Cleary said.
In his judicial chambers at the U.S. Court of Appeals for the D.C. Circuit, Garland was not one to tell war stories, but his clerks understood how the experience in Oklahoma had affected him.
"He knew and felt the weight of the individual lives lost — the families, the children, the first responders. That was front and center," said Clare Huntington, one of Garland's first law clerks after he joined the bench in 1997.
Huntington, now a Fordham University law professor, described Garland as "clear-eyed about what was at stake. This was domestic terrorism."
Danielle Gray, another former law clerk, said Garland's experience at the Justice Department, particularly handling the McVeigh case, defined the type of lawyer he has been and how he has served on the appeals court, which hears cases as panels composed of multiple judges.
"When I think about some of these cases today and concerns about the rise of domestic terrorism, I think about Judge Garland's real ability to bring people together," said Gray, who went on to work in the Justice Department and the Obama White House.
Michael E. Tigar, an emeritus Duke Law professor and lawyer who represented McVeigh's co-conspirator Nichols, at times sparred with Garland in court, arguing in a 1995 hearing that Nichols was being prosecuted because of his alignment with "unpopular people and causes," according to news reports at the time.
Nichols was sentenced to life in prison.
Tigar cautioned in a recent interview about the need for Justice Department leadership that does not overreach when it comes to confronting the latest threats.
"White supremacists and armed racists present a genuine issue, and we need to have people at the helm who will direct the Federal Bureau of Investigation down good and productive investigative paths, who will choose a series of prosecutions that do not involve questionably constitutional statutes which can be stretched to cover protected conduct as well as unprotected conduct," he said.
"You need somebody who is reacting to the present situation who has shown a kind of careful judgment that doesn't extend to overreaction," added Tigar, who also has represented political activist Angela Davis and the Chicago Seven, accused of plotting to riot at the Democratic National Convention in 1968. "While I think Merrick Garland is a dedicated and smart public servant, I hope folks will ask those questions and listen to his answers about them."
Jurors ultimately heard 22 days of testimony at McVeigh's 1997 trial and — after deliberating for 23 hours over four days — convicted him on all counts, just months after Garland began his tenure as a judge. A Washington Post account at the time noted that the evidence was largely circumstantial, but that prosecutors "managed to keep emotions high and the pace breathtakingly fast" as they presented their case.
Hartzler said that sometime later, the Oklahoma City National Memorial & Museum asked him for any materials he might have kept from the trial. He turned over his sheet of paper with Garland's advice. It hangs in the museum today.
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