Poised to take over a beleaguered Justice Department, Merrick Garland may face his biggest test

Crystal Hill
·Reporter
·11 min read

For Merrick Garland, a well-regarded lawyer and federal judge — and onetime Supreme Court nominee — there was a critical condition under which he’d accept the nomination of attorney general under President Biden.

“Merrick’s acceptance comment was, ‘President-elect Biden has guaranteed me independence,’” Earl Steinberg, a childhood friend of Garland, recalled from Biden and Garland’s Jan. 7 nomination announcement. “Then he choked up a little bit and said, ‘or I would not have accepted the nomination.’ That is classic Merrick.”

It seemed to strike Steinberg as an encapsulation of the kind of law practitioner that Garland has strived to be throughout his decades-long career.

“That’s not to say that there aren’t going to be situations in which he seeks input from the administration about nonlegal dimensions,” Steinberg, a physician who has known Garland since kindergarten, told Yahoo News. “But he’ll do the right thing legally.”

A straitlaced man of humble beginnings, Garland is now poised to lead a Justice Department diminished by the political demands of the previous administration. His nomination comes more than 40 years after he served as special assistant to then-Attorney General Benjamin Civiletti, a post-Watergate-era lawyer who established a nationwide standard for federal prosecutors.

Merrick Garland speaks at the Queen theater in Wilmington, Del., on Jan. 7. (Susan Walsh/AP)
Merrick Garland speaks at the Queen theater in Wilmington, Del., on Jan. 7. (Susan Walsh/AP)

Garland, if confirmed in March, will be expected to rekindle the agency’s reputation for independence from partisan influence, those with knowledge of the department told Yahoo News, while contending with immense challenges stemming from the alarming threat of right-wing extremism, the push for racial equality in the justice system, and the continuing fallout from the deadly riot at the U.S. Capitol.

“Racial animus and the inability of our country to resolve the difficulties of race going forward are at the heart of the [Jan. 6] insurrection,” Wade Henderson, interim president and CEO of the Leadership Conference on Civil and Human Rights and the Leadership Conference Education Fund, told Yahoo News. “And they are at the heart of the challenges that Judge Garland will face as the attorney general. It’s not just the integrity and independence of the department that Judge Garland will have to address, it’s also the mission.”

The challenges that lie ahead suggest that Garland, who is known for his even-keeled temperament and sharp legal mind, will have to navigate the political pressures of being the nation’s top legal officer on a grander scale than he’s perhaps ever had to manage during his earlier years at the Justice Department. Former colleagues believe the 68-year-old Harvard Law graduate is up to the task.

“I think [Garland] will surround himself with good advisers. He will pick good people to help him,” Alan Strasser, a Washington, D.C., attorney who worked with Garland at the U.S. Attorney’s Office for the District of Columbia in 1989, told Yahoo News. “I suspect that that’s part of what let him be so successful in the [Timothy] McVeigh prosecutions.”

The prosecution of McVeigh for the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, an act of domestic terror that left 168 people dead, including children, has been singled out in profiles of Garland as a significant test of his legal skill. His handling of the case demonstrated his effectiveness under pressure and his capacity to both console those directly affected by the bombing and dispassionately prepare a thorough case against McVeigh and his co-conspirators for the trial team (Garland supervised but did not argue the case in court).

Timothy McVeigh is led out of the Noble County Courthouse in Perry, Okla., on April 21, 1995. (John Gaps III/AP File)
Timothy McVeigh is led out of the Noble County Courthouse in Perry, Okla., on April 21, 1995. (John Gaps III/AP File)

Garland, who was 42 at the time and the top aide to then-Deputy Attorney General Jamie Gorelick, was dispatched to Oklahoma from D.C. to oversee the case just days after the bombing had occurred. “I was given one evening to pack and say goodbye to my 3- and 5-year-old daughters, and my wife, and we began from there,” Garland said in a video released by the White House when he was then-President Barack Obama’s Supreme Court nominee in 2016.

The investigation was sprawling, Gorelick told Yahoo News. “The FBI had fanned out across the country,” she said. “There were [about] five or six U.S. attorneys’ offices involved. And it was his job to bring them together to make sure that the investigations were done by the book and that the prosecutions were well-founded and successful.”

Attorneys who interacted with Garland in the case recall his legal acumen and stabilizing presence in an environment that was rife with competing interests.

Oklahoma defense attorney Stephen Jones, a self-described Republican who represented McVeigh, recalls being present at a preliminary hearing in El Reno, Okla., for Terry Nichols, who’s now serving a life sentence in federal prison for helping McVeigh carry out the attack. Garland was representing the state at the hearing with newly installed Oklahoma U.S. Attorney Patrick Ryan, Jones said, and defense lawyer Michael Tigar was representing Nichols.

“I have forgotten now what the issue was, but Mike Tigar, in his somewhat rambunctious fashion, made a statement that was a bit antagonistic,” Jones told Yahoo News. “Merrick stood up, I guess to object. And Ryan put his hand on Merrick’s back as though to say, ‘Don’t stand up.’ No words were exchanged. He just put his hand on his back. Here’s a man who’s No. 3 in the Department of Justice and Pat Ryan, who had just been made United States attorney. Yet Pat had the strength to basically tell Merrick don’t engage. And Merrick had the wisdom to not engage.”

(Tigar told Yahoo News he does not remember this occurrence and was focused on representing his client. “The issues were very contentious,” he said. “We all behaved like lawyers, and we made our points emphatically.”)

People take cover as rioters try to break into the House chamber at the U.S. Capitol on Jan. 6. (Andrew Harnik/AP, file)
People take cover as rioters try to break into the House chamber at the U.S. Capitol on Jan. 6. (Andrew Harnik/AP, file)

Ryan remembers this episode, he told Yahoo News, though it did not strike him the way it did Jones, who said he was sitting behind Garland in the courtroom at the time. Ryan was thrust into the high-profile case having been sworn in just weeks after the bombing.

“I remember it because I was scared to death,” Ryan said. “It was my first day as U.S. attorney. I’d never handled anything like this. So I was really glad to have someone like Merrick there, who had been around, who had dealt with some of these major matters in the past, and he gave a lot of good guidance.”

The case needed a tremendous amount of attention to detail, Strasser said. The forensic evidence involved complex science and required sophisticated thinking to determine how to put all the evidence together and tell a compelling story. The case against McVeigh, an Army veteran who harbored antigovernment sentiments, also gave Garland exposure to right-wing extremism, according to Strasser.

Garland’s work in Oklahoma is likely a preview of what the public may see from him in response to the Jan. 6 riot at the U.S. Capitol, an event that was far less deadly than the Oklahoma City case but was nevertheless shocking. The attack, which unfolded during the count of Electoral College votes to certify Joe Biden’s win, left at least five people dead and has led to the arrests of more than 100 people.

The U.S. Capitol, seen behind a razor fence. (Manuel Balce Ceneta/AP)
The U.S. Capitol, seen behind a razor fence. (Manuel Balce Ceneta/AP)

A failed attempt by House Democrats to convict former President Donald Trump in his Senate impeachment trial for allegedly inciting the riot has raised questions of whether Trump could face criminal charges for his perceived role in the attack. At a briefing on Feb. 16, White House press secretary Jen Psaki said it will be “up to the Department of Justice” to determine whether to prosecute Trump.

“I think that any investigation of the circumstances of Jan. 6 will have to take into account what ultimately motivated the rioters to come to the Capitol,” Henderson told Yahoo News, “and who played a part.”

Mary McCord, the legal director at the Institute for Constitutional Advocacy and Protection at Georgetown University Law School, told Yahoo News that the Capitol riot cases clearly merit strong federal interest, but not for political reasons.

“These were threats to our democracy,” said McCord, a former acting assistant attorney general and federal prosecutor in Washington, D.C. “This was an effort to prevent the federal law from being implemented, an effort to prevent the joint session of Congress from doing its job under the Electoral Count Act. So the federal interest really couldn’t be stronger here.”

Trump supporters scale the west wall of the Capitol on Jan. 6. (Jose Luis Magana/AP, file)
Trump supporters scale the west wall of the Capitol on Jan. 6. (Jose Luis Magana/AP, file)

For Garland, a native of the Chicago suburb of Lincolnwood, a willingness to engage on difficult issues is practically a lifelong skill. A classmate of his at Niles West High School, where Garland was valedictorian, told the Washington Post about Garland’s use of evidence from a psychologist to successfully win his peers the right to wear shorts during final exams at the school, which lacked air-conditioning.

“He was always exceptionally bright,” Steinberg, the childhood friend, told Yahoo News. “He won ‘Most Likely to Succeed’ in eighth grade. During senior year of high school, he was president of the student council. He was generally well liked and very highly respected.”

His potential ascension to one of the most powerful positions in government seemed almost inevitable to those people who’ve known him, but Steinberg can’t recall Garland ever declaring that he’d become someone important or influential, even when he’d made it to Harvard, an Ivy League institution that consistently churns out judges, lawmakers and Cabinet heads.

“If you trace [his] path, he’s made a lot of choices to better equip or position himself to do bigger things,” Steinberg said. “But always with the desire to have an impact.”

His career trajectory includes a stint at Arnold & Porter, a private D.C. law firm, where he rose through the ranks to become a partner. He departed the firm to work as a federal prosecutor under Jay Stephens, the Republican-appointed U.S. attorney in Washington, from 1989 to 1992.

“I think it gave him an opportunity to use his intellectual prowess to develop as an investigator, which was a key piece of being a good prosecutor,” Stephens told Yahoo News. “Not just being a trial lawyer, but being able to put the case together and understand how you build facts, how you leverage facts, and then how you put it all together in a persuasive way to try the case.”

Merrick Garland in 2017. (Andrew Harnik/ AP, file)
Merrick Garland in 2017. (Andrew Harnik/ AP, file)

Stephens and other former colleagues told Yahoo News that beyond Garland’s legal capabilities, it’s his emotional intelligence that will aid him in rebuilding a department that reportedly devolved into a demoralizing, hyperpolitical environment under former Attorney General William Barr and Trump.

“He doesn’t pick on people or take potshots,” McCord said of Garland. “He’s just smart, gracious and kind. And I cannot emphasize how important that is right now when it comes to restoring and rehabilitating not only reputation at the Department of Justice to outsiders, but the morale of the career attorneys and staff within the department.”

Together with the widely held reverence for Garland, he has his detractors too. When he was nominated for the Supreme Court position left vacant by Antonin Scalia’s passing in 2016, which ultimately fell through when Senate Republicans effectively kept Garland from getting a hearing, some critics were troubled by his judicial rulings in favor of law enforcement in criminal case appeals.

A New York Times analysis of his judicial rulings found that out of 14 criminal cases in which Garland ruled differently than a fellow judge, his decisions favored law enforcement 10 times.

In his defense, Gorelick said Garland during his time at the Justice Department cared “tremendously about civil rights. We had church burnings and abortion clinic bombings, militia terrorists and all kinds of civil rights challenges. And he led the charge.”

Gorelick also pointed to his 23-year term on the bench, which limited what he could do or say on policy matters.

“When you are a judge for 23 years, you don’t have the opportunity to speak in your own voice,” she said. “You are making decisions based on precedent. So, in terms of what he would do as a policymaker in that regard, he has not had the opportunity to speak.”

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