WASHINGTON — Judge Merrick Garland on Monday offered a first glimpse into how he’ll handle the investigation into last month’s insurrection at the US Capitol if confirmed as US attorney general, pledging to give career prosecutors all resources “they could possibly require” and follow all leads “wherever they take us.”
Testifying before the Senate Judiciary Committee as part of his confirmation process, Garland called the effort by hundreds of supporters of former president Donald Trump to stop Congress from meeting on Jan. 6 to certify the results of the election “the most heinous attack on the democratic process that I’ve ever seen and one that I never expected to see in my lifetime.”
More than 230 people have been charged to date, and the Justice Department is exploring the involvement of hundreds more in a sprawling, nationwide investigation. Garland — a judge on the US Court of Appeals for the DC Circuit for more than two decades and, before that, a senior Justice Department official — told the committee that understanding what resources prosecutors and the FBI need for the investigation would be his “first priority" and "first briefing” if he’s confirmed.
Garland spoke about drawing on his experience as the lead prosecutor in the federal investigation of the 1995 Oklahoma City bombing, not just in response to the Capitol assault but also more broadly in combating the rise of white supremacy. He said there was a line that connected the January insurrection to the Oklahoma City bombing and back to the “battles of the original Justice Department against the Ku Klux Klan.”
“We must do everything in the power of the Justice Department to prevent this kind of interference with the policies of American democratic institutions and I plan, if you confirm me for attorney general, to do everything in my power to ensure that we are protected,” Garland said.
Looming over Garland’s appearance before the Senate Judiciary Committee on Monday was the hearing he never had in 2016 after former president Barack Obama nominated him for the US Supreme Court. Top Republicans, who controlled the Senate at the time, refused to act on his nomination, arguing that the vacancy should be kept open until after the presidential election that fall. Sen. Chuck Grassley, who was the chair of the Judiciary Committee in 2016 and is the top-ranking Republican now that Democrats control the Senate, began his remarks on Monday by defending the decision not to hold a hearing five years ago, but saying that he now extended a “warm welcome” to the judge and described him as a “good pick” for attorney general.
One of the big unresolved questions is whether former president Donald Trump or Trump allies involved in urging people to oppose Congress’s certification of the election could face criminal prosecution; some defendants have blamed the former president, saying they were following his instructions when he said to go to the Capitol and to “fight like hell.”
Asked by Sen. Sheldon Whitehouse if he would follow the investigation “upstream” to “funders, organizers, ringleaders or aiders and abetters” of the violence on Jan. 6, Garland said generally that he would apply that approach, but didn’t specifically commit to investigating any particular person.
“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,” Garland said.
Garland talked repeatedly about wanting to make sure prosecutors and the FBI have the resources they need to pursue the investigation. The acting US attorney in Washington, DC, Michael Sherwin, has publicly pushed back against a report last month that prosecutors were considering not charging some people to conserve resources, saying that there is “no manpower issue.” When Sen. Lindsey Graham asked Garland to let the Judiciary Committee know if DOJ needed more resources, Garland replied that he was “eager” to have that conversation with senators.
Several Republican members of the committee brought up demonstrations last year in Portland, Oregon, that involved violent nighttime clashes between protesters and police around the federal courthouse. Sen. Chuck Grassley, the ranking Republican on the committee, asked Garland to commit to continuing that investigation as well as the one into the Capitol insurrection. Sen. Josh Hawley — who raised his fist in encouragement to Trump supporters gathered outside the Capitol on Jan. 6 a few hours before a mob descended on the building — asked Garland if attacks on federal courthouses like what happened in Portland were acts of domestic extremism or domestic terrorism.
Hawley didn’t explicitly say that he was comparing what happened in Portland to the insurrection, but Garland’s response made clear that’s what he understood Hawley to be doing. Garland said that violence against a courthouse was a “serious” crime that should be punished, but said that he would draw a line between an attack on federal property and an attack aimed at preventing judges from hearing cases.
“Both are criminal, but one is a core attack on our democratic institutions,” Garland said.
Garland also invoked the insurrection when Hawley asked him during a separate exchange if Garland supported defunding police departments. Garland said that he, like Biden, did not.
“We saw how difficult the lives of police officers were in the body cam videos we saw when they were defending the Capitol,” he said.
The assault on the Capitol revived efforts in Congress to pass a law creating new categories of federal crimes for domestic terrorism. Garland declined to take a position on that. As a candidate, President Joe Biden expressed support for a new domestic terrorism law “that respects free speech and civil liberties.” Groups such as the American Civil Liberties Union have come out against it, arguing that even if it were motivated now by a desire to root out white supremacy, any effort to give more surveillance and prosecutorial power to law enforcement would end up harming communities of color.
Garland said that he would need to figure out if federal criminal laws already on the books gave prosecutors enough tools to respond to these types of cases before taking a stance on new legislation. He noted that prosecutors had been able to successfully prosecute other domestic terrorists in the past under existing laws, including Timothy McVeigh and Terry Nichols in connection with the Oklahoma City bombing.
House Speaker Nancy Pelosi has announced plans to create an independent commission to investigate the insurrection, similar to the commission that Congress created after 9/11. Sen. Chris Coons asked Garland if he would support it. Garland said he believed the 9/11 commission was useful and that Congress had the authority to do something similar again, but asked that any parallel investigation not “interfere” with the department’s ability to prosecute — for example, by revealing ongoing operations, disclosing sources, or soliciting testimony from people in a way that complicated the Justice Department’s ability to charge them.
Garland is expected to clear the Senate Judiciary Committee without any problem and win confirmation when his nomination goes to the full Senate for a final vote. One of the only times Republican members of the committee expressed hesitation about Garland on Monday was when they asked about his commitment to keeping on John Durham, a special counsel appointed by former attorney general Bill Barr to investigate how the FBI and the Justice Department handled the investigation into ties between the Trump campaign and Russia during the 2016 election. Trump and Republicans frequently attacked that investigation as politically motivated; reviews by the DOJ inspector general’s office identified failures in how officials conducted the probe early on but also didn’t support Trump’s claims of a widespread, politically biased “witch hunt.”
Garland said he saw “no reason” to end Durham’s work, but didn’t believe it was appropriate to take a concrete position without understanding all the facts and the status of that investigation.