The Daily - Fate, Domestic Terrorism and the Nomination of Merrick Garland

Episode Date: February 25, 2021

Five years ago, Judge Merrick B. Garland became a high-profile casualty of Washington’s political dysfunction. President Barack Obama selected him to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, but Senate Republicans blocked his nomination. In the process, Mr. Garland became known for the job he didn’t get.Now, after being nominated by the Biden administration to become the next attorney general, Mr. Garland is finding professional qualifications under scrutiny once again. In light of the attack on the Capitol, we explore how his career leading investigations into domestic terrorism prepared him for his Senate confirmation hearing.Guest: Mark Leibovich, the chief national correspondent for The New York Times Magazine, who spoke with Judge Merrick B. Garland.Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: In his confirmation hearing this week, Mr. Garland said the United States now faced “a more dangerous period” from domestic extremists than at the time of the 1995 Oklahoma City bombing.Here’s why Mr. Garland described his experience leading the Justice Department’s investigation into the 1995 bombing as “the most important thing I have ever done in my life.”For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. During his confirmation hearings this week, President Biden's nominee for Attorney General, Merrick Garland, said that investigating the January 6th attack on the Capitol and the forces behind it would be his number one priority. My colleague, Mark Leibovich, on how a pivotal moment in Garland's career prepared him to confront domestic extremism.

It's Thursday, February 25th. Mark, the name Merrick Garland has become synonymous with, to put it bluntly, partisan roadkill in Washington. Right? An Obama Supreme Court nominee who was never given so much as a hearing for that nomination. Correct. There are certain figures in Washington who become known by something kind of notorious that happens to them, sometimes having nothing to do with their own talents and skills and experiences. Merrick Garland, despite having an incredibly celebrated career, became known in Washington as the guy who was defined by the job he did not get, the Supreme Court job that

President Obama nominated him to in 2016. The seat was held open. Republicans just would not have a hearing for it. And Donald Trump was elected eight months later, and someone else got the job. So is that the story you were thinking about when President Biden nominated Garland just a few weeks ago to become the attorney general? Originally, yes. When we first started hearing the name Merrick Garland

as a potential Biden attorney general appointee, the immediate association that I, and I think most people around Washington had was this is the guy who just got denied. This is the guy who was Merrick Garland. There are certain people whose name becomes a verb, right? Garland. Merrick Garland is someone who people like literally walked up to him on the sidewalk over the last few years. They recognize him and they offer condolences to him because it's as if someone died. It's like, I was talking to someone who was having lunch with him somewhere downtown in DC. Someone literally walked up to the table, you know, almost hugged him

because she felt so terrible about what he had gone through. This was two years after it actually happened. And I can imagine that he was pretty sick of this after a while. But yeah, but that was my association. I assume it was a lot of people's association. And then I did a little research into him and I realized, actually, there is a whole history this guy has that is extremely rich and very different and extremely relevant to what we're living through right now. And what is that story? So Merrick Garland's background is pretty basic. This was a juggernaut through the American meritocracy, valedictorian of his class in

suburban Chicago, Harvard undergrad, Harvard Law School, summa cum laude, clerkship for Supreme Court Judge Brennan, jobs in the private sector, public sector, lands at the Department of Justice in the 90s. He had a very big job there. He was the deputy assistant attorney general had a very big job there. He was the Deputy Assistant Attorney General to then Attorney General Janet Reno. I know we have a lot of assistants and deputies going on here, but this was really a big job. A lot of responsibilities. And then, all of a sudden, he comes into work on April 19th, 1995. So I was in my office. It was on the fourth floor of the

Justice Department building at night. And I was at my desk, and I had a my office. It was on the fourth floor of the Justice Department building at night. And? And I was at my desk, and I had a computer terminal. Something happened that completely shaped the trajectory of his career. I got a report entitled, Urgent Report, came across the computer screen, and I clicked on it and opened it up. So he gets this urgent alert. And there was a report from, I think, the acting United States attorney in Oklahoma, saying that there had been an explosion at the Murrah building. Saying there's been an explosion in Oklahoma City.

And he actually recounted this in some detail in an oral history he gave to the Oklahoma City National Museum. And as he recalls it, there was not a lot of information about what had caused the explosion just then. We didn't have internet access in the Justice Department in those days, so our method of finding out what was happening elsewhere in the country was CNN. We turned on CNN. CNN joins an affiliate in Oklahoma City, KFOR, to bring you the latest that they're having live updates on this explosion that's happened at the building in in Oklahoma City, KFOR, to bring you the latest that they're having

live updates on this explosion that's happened at the building in downtown Oklahoma City. This is live from KFOR. The Alfred Murray Federal Building is where this explosion occurred, and that building is devastated. Certainly, people that were in the rooms on that one side of the building, it would be unlikely they could survive. We started hearing about how many people were likely in the building, and you could see from the television screen that there were going to be a lot of people who were dead.

We don't know who did it or why, but here is what we do know at this hour. At least 26 people are confirmed dead in the explosion. In addition, at least 200 are injured. About 300 more are missing. 300 more are missing. Merrick Garland sees this as information is sort of flying in and rumors are sort of flying in. He just sort of said to his boss, I got to go. I want to go there. To Oklahoma City?

Yes. So we thought we should have somebody there. And from a personal point of view, I wanted to go. I mean, it was a terrible scene on the television. And everybody who goes into public service wants to help. Merrick Garland wanted to be the Department of Justice's person in Oklahoma City. So I went home that day, packed my bag. I'm married and I had two very young daughters. One was four and a half and one was two and a half.

I had to tell them that I was going and of course we didn't know when I was coming back. So that was very difficult. And Mark, what does he see once he gets there? He got there at night. It really looked like a war zone. You had to get through a ring of Humvees, which the National Guard, I guess, had set up maybe 10 square blocks or so around the bomb site as a crime scene. And you could see broken glass all over. You could see crumbled bricks on the ground. He sees this smoldering building.

And, you know, the extent of the catastrophe was immediately apparent. But when 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, just the enormity of what happened, it's just incredibly striking. He sees bodies being taken out.

The worst part was being told that... where the kids had been. He sees just a lot of, you know, awful things. I mean, a lot of the victims were children in a daycare center. The first thing people pointed out was this is where America's's Kids Child Care Center had been. There was nothing there.

It was just a big empty concave hole. So we just knew that anybody who had been there, it would have been just a miracle if they had survived. Hmm. So, Mark, what role does Garland come to play in this investigation on the ground in Oklahoma City? Merrick Garland was basically overseeing the entire case at this point. He is basically the minister of chaos.

He is trying to coordinate any number of jurisdictions, local, state, many states involved in a very, very fast-moving investigation. What became very clear early on was that, one, this was a major act of domestic terrorism, the likes of which this country has not seen since and had never seen before. And two, there were two prime suspects, one of whom, Timothy McVeigh, was apprehended pretty quickly and was found to have driven a truck into a nearby parking garage filled with fertilizer and explosives. And his goal was to kill and destroy as many things as possible, which is what the bombing became. as many things as possible,

which is what the bombing became. It killed 168 people, 19 children, and that forever became known infamously as the Oklahoma City bombing case. Right, and as I recall, Mark, Timothy McVeigh and his co-conspirator were domestic terrorists with a very particular ideology. They were anti-government extremists. And so Oklahoma City was something fairly new

in the American consciousness, Americans killing fellow Americans and seeking to attack symbols of their own government and succeeding. Correct. I mean, until then, to that point, and even since then, especially with 9-11, the association most Americans have was that terrorism was a foreign thing. It was something that happened internationally, something that people from other countries did to us, right? Timothy McVeigh and Terry Nichols, his accomplice, basically, they just wanted to do as much damage to the federal government as possible. The Murrah building in Oklahoma City was the closest available and most vulnerable available federal building.

So he took aim at that and seemed to have very, very little care in the world about any collateral damage of innocent victims. And so, Mark, what happens to this investigation and this prosecution that Garland oversees? Well, essentially, this case ends in a successful prosecution of Timothy McVeigh. He was found guilty. He was sentenced to death. He was put to death by lethal injection. I mean, it was a rare case that was sort of open and shut in closure all within a couple of years. Right. There was real finality to what happened in Oklahoma City.

And, Mark, what is this case, when it is over and done with, what does it come to mean to Merrick Garland and for his career in the law? I mean, in a purely career trajectory sense, it was very good for Merrick Garland's career. It was seen as an impeccable investigation. It was a successful prosecution. He was soon going to be named the head of the criminal division of the Justice Department. So he sort of continued on his rise. But I also think along the way, it really seared into him the importance of domestic terrorism, both as a complicated law enforcement matter, but as just a highly emotional issue. He was involved in a couple of related cases during this period. One was the

Unabomber case, who was this disaffected extremist who was sending bombs through the mail, people he saw as a threat, you know, for any number of reasons. There was also this bombing of the 1996 Olympics in Atlanta that he was involved with also. So this became the formative work of his career. What strikes me is that 30-some years ago, before anybody was really thinking about the threat of domestic terrorism as an ongoing challenge to law enforcement in the U.S., it feels like Garland is becoming a unique authority on the subject. Yeah. Because of these events conspiring in the 90s when he was at the Department of Justice, Merrick Garland became the domestic terrorism authority, probably more so or as much as anyone in the country at that point. And like, that's not something he planned when he was sitting, you know, reading law books at Harvard. But this is something that fate happened to him. He became the domestic terrorism guy. He is then appointed to the federal bench by Bill Clinton. He's an appeals court judge, and he's doing that for a

number of years. And like a lot of people, he was just sort of waiting, hopefully, maybe to get the next big job. And when you're a federal appeals court judge, there's basically two kinds of jobs that are the next big job. There's the attorney general job, or there's one of the nine Supreme Court positions. They don't come open very often, but all of a sudden, you know, 2016 rolls around and fate once again comes back to touch Merrick Garland on the shoulder. We'll be right back.

So, Mark, in our chronology, it is March of 2016. If I remember this correctly, President Obama has now put two justices on the Supreme Court, Elena Kagan and Sonia Sotomayor, And then a third seat opens with the death of Justice Antonin Scalia, and he looks to Merrick Garland. And of course, we all know how it ends, but what did Garland represent to Obama, and why did Obama nominate him? Merrick Garland represented both to President Obama, the White House, and also, I think, their hope was to Republicans, a safe choice. He was considered a moderate. He was considered a centrist.

He was someone that won praise from a lot of different constituencies, from the center, from the left, from the right. He was seen as a pick that would be most likely to be agreeable to Republicans at a time when Republicans had actually won back the Senate in 2014. So they had a majority. So President Obama was very mindful of winning the center, of getting five or six Republican votes that could get Merrick Garland's nomination approved by the Senate. Right. Which does not happen because Senator Mitch McConnell, the Republican leader, does not even let him ever have a hearing.

It never gets that far. Mitch McConnell, in a fairly unprecedented move in March of 2016, said, no, we're going to wait for the next president to decide this. He said it is traditional for the Senate to wait and allow the next president in an election year to decide. Eight months is a long time, but when you are Mitch McConnell and you control the Senate, you can basically do what you want. And this places Merrick Garland into this sort of eight-month purgatory, and Merrick Garland's delay becomes permanent, at least as far as the Supreme Court goes. Right. And at that point, I think many people, I put myself in that category,

kind of thought that that was the end of Merrick Garland. But, Mark, as you said, there's one other job that someone like Merrick Garland would want, one last brass ring, other than the Supreme Court, that he might be desirous of. The attorney general job. That was open. It was available. A Democrat had won the election. And again, when you first started hearing Merrick Garland's name mentioned for this somewhere in December, again, the first association most people had was, oh yeah, this is the guy who didn't get the Supreme Court job. There's a make-up going on here. It's like, okay, this will be a nice consolation prize. But then, you know, once you do any kind of research into him, you realize that domestic terrorism is the formative work of his

career. And then lo and behold, January 6th happens. And one day later, Merrick Garland is back front and center in the American news cycle. Right. So he is announced on January 7th, the timing of which is truly remarkable because the day before, January 6th, is immediately labeled an act of domestic terrorism, what has happened at the Capitol. That's right. And I think, Mark, that brings us to Garland's Senate confirmation hearings. This hearing will come to order. Which are happening this week. And how prominent has this version of Garland as an expert of domestic terror and extremism been during these hearings? Pretty prominent.

150 years after the department's founding, battling extremist attacks on our democratic institutions will remain central to the department's mission. 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. If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6th. He basically said, I believe on Monday, that getting to the bottom of what happened on January 6th at the Capitol is his top priority.

A heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government. It is already probably the most complicated and the largest investigation in Justice Department history given the range of factors involved, given the possible accomplices involved, given the fact that the United States' own government could be involved in a number of different jurisdictions. He was asked explicitly on Monday. With respect to January 6th, I'd like to make sure that you are willing to look upstream from the actual occupants who assaulted the building and that you will not rule out investigation of funders, organizers, ringleaders, or aiders and abettors who were not present in the Capitol on

January 6th. Might you follow this wherever, you know, it leads to the White House, to, you know, the various agencies and so forth? And he said, you know, you would expect him to say. We begin with the people on the ground and we work our way up to those who are involved and further involved. And we will pursue these leads wherever they take us. That's the job of a prosecution. But I think he's fully aware that the level of challenge here is unlike anything he or anyone has ever confronted before. But of course, running the Department of Justice, if he becomes Attorney General and being the country's chief law enforcement officer, is not going to be about any single issue like domestic terrorism. It's not going to be about any single investigation,

as in January 6th. It's going to involve a range of policies, especially in this moment. You have, for example, the issue of police oversight, criminal justice reform, racial justice. And what are Merrick Garland's credentials there? To be honest with you, Michael, I mean, they're not as extensive as certainly his domestic terrorism portfolio is. There's a fair amount of doubt among progressives, among African-Americans and civil rights activists about whether this is a top commitment of his. Merrick Garland prosecuted a number of death penalty cases. That is a seminal civil rights issue right now in a very different

kind of way than it was in the 90s. But still, I mean, that issue is front and center to racial equality, to criminal justice reform and issues such as that. And also when the job was open, a number of civil rights activists, Al Sharpton among them, were really advocating for an African American to be named by Joe Biden. And Merrick Garland is a white guy, and his experience is not really known for that. But he has also spent a great deal of energy this week at his hearings, as the White House has when they were introducing him back in January, to civil rights. I have also told you that this is an important moment for me to step forward because of my deep respect for the Department of Justice, which was founded during Reconstruction in the aftermath of the Civil War, to secure the civil rights that were promised in the 13th, 14th, and 15th Amendments. He has spent a great deal of energy reassuring people. I think he would agree that reassurance is the right word, that he is as committed to

civil rights as the civil rights community would want him to be. That mission remains urgent because we do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, in education, in employment, and in the criminal justice system. And they bear the brunt of the harm caused by pandemic, pollution, and climate change. Garland's message is, you can trust me on this. Yes, that is his message. I mean, again, it is not what he is known for, but he has tried to make it clear this week in the hearings that it is something he is as committed to as really anyone is,

including certainly in the White House. So, Mark, given that, is the choice of Merrick Garland, Joe Biden, saying that when it comes to law enforcement, what he values in this moment, and a focus we should expect from Garland as Attorney General, is a pretty significant focus on these questions of extremism and domestic terrorism, especially in the aftermath of January 6th, perhaps more so than these other areas. I don't think I wouldn't look so much to Joe Biden's choice of Merrick Garland as the last word on what his priorities

law enforcement-wise are. But I think clearly Merrick Garland has a skill set that they are leaning into right now just because the circumstances at the times have lined up with it. Mm-hmm. Mark, do you expect Merrick Garland to be confirmed? It seems like it would be a very cruel decision to send him into that lion's den once again, unless Biden was absolutely certain that he would be confirmed this week. But let's be clear. I think Republicans are not going to confirm him

because they are intent on doing a makeup call for four years ago, nor is Joe Biden nominating his attorney general with hopes of making things right from a disappointment of four years ago. I mean, I think he's obviously qualified. I think he is seen as being agreeable to a lot of Republicans. A number of Republicans have come out for him already, including Mitch McConnell this week. So I think the combination of that would indicate that he is on pretty safe ground right now. Like I said earlier, I mean, I'm always interested in people who have these strange twists of fate, whether they are initiating it themselves or fate just sort of touches them on the shoulder in a weird way. And here is someone that I think people had figured the last quirky and sort of crushing disappointment chapter of his career had been written in 2016. And then all of a sudden, fate comes around again, and a Democrat is elected president,

and domestic terrorism is the number one law enforcement issue in the country. And Merrick Garland is 68 years old. And sure, he's up to take a big job if he can get it. So this time, fate is on his side. It would seem that the fates have lined up in his favor this time. Mark, thank you very much. We appreciate it. Thank you, Michael. Mark, thank you very much. We appreciate it. Thank you, Michael. The Senate is expected to vote on Merrick Garland's nomination for Attorney General next week.

We'll be right back. Here's what else you need to know today. A major analysis from the U.S. government shows that Johnson & Johnson's single-dose vaccine against COVID-19 provides strong protection against severe infection and death, and may reduce transmission of the virus by those who receive it. As a result, the Times reports that the FDA could approve the vaccine as soon as this weekend, giving Americans access to a third, highly effective vaccine. And President Biden's nomination of Neera Tanden to lead the Office of Management and Budget appeared to be in peril on Wednesday in the Senate after two committees postponed scheduled votes on her nomination. Tandon, who helped write the Affordable Care Act, has encountered growing resistance over, among other things, her history of social media posts

mocking lawmakers from both parties. Tandon has lost the support of at least three moderate senators, Democrat Joe Manchin of West Virginia and Republicans Susan Collins of Maine and Mitt Romney of Utah. The White House said that it remains confident that Tandon will be confirmed, but her path is now narrow and uncertain. narrow and uncertain. Today's episode was produced by Rachel Quester and Robert Jimison. It was edited by Paige Cowett and M.J. Davis-Lynn and engineered by Chris Wood. That's it for The Daily.

I'm Michael Barbaro. See you tomorrow.