Garland says he will investigate Capitol riot, stamp out domestic terrorism
WASHINGTON - Attorney general nominee Merrick Garland said Monday that his first briefing and top priority if confirmed as attorney general would center on the sprawling investigation into the Jan. 6 riot at the U.S. Capitol, and he more broadly vowed to stamp out the rising threat of domestic terrorism.
Testifying at his confirmation hearing before the Senate Judiciary Committee, Garland drew parallels to the domestic terrorism threat the Justice Department faced in confronting the Ku Klux Klan, as well as the prosecution he led of Timothy McVeigh in the bombing of a federal building in Oklahoma City in 1995.
"We are facing a more dangerous period than we faced in Oklahoma City at that time," Garland asserted, promising a broad investigation into the rioters and those who aided them.
"We begin with the people on the ground, and we work our way up to those who are involved and further involved," Garland said. He added: "We also have to have a focus on what is happening all over the country and on where this could spread, and where this came from."
Garland, a judge on the U.S. District Court of Appeals for the District of Columbia, is expected to be confirmed with bipartisan support, though Monday's hearing offered Democrats and Republicans a chance to press the nominee on how he will manage the department.
Republicans sought to extract promises of specific investigations and prosecutions in politically sensitive cases, particularly special counsel John Durham's review of the FBI's 2016 investigation of Donald Trump's campaign. As Democrats said the Justice Department had been politicized in the Trump administration, Republicans aired their displeasure with actions in the Obama administration and asked Garland to assure them that he would not return to Obama-era policies.
Garland said he saw "no reason" to end the Durham probe - though he also declined to provide a firm commitment to giving Durham the time and resources to finish his work.
Garland told Sen. Chuck Grassley, R-Iowa, that, if confirmed, he would speak with the special counsel. Grassley pressed Garland on whether he would only remove Durham "for cause."
"I really do have to have an opportunity to talk with him. I have not had that opportunity," Garland responded. "As I said, I don't have any reason from what I know now - which is really, really very little - to make any determination on that ground. But I don't have any reason to think that he should not remain in place."
Garland also declined to commit to making Durham's findings public, though he said he generally favored transparency.
The exchange seemed to partially mollify Grassley, who said, "I think you've come close to satisfying me, but maybe not entirely." Grassley noted that when then-attorney-general-nominee William Barr appeared before the committee, he had offered a more firm endorsement of Robert Mueller's investigation into Russia's interference in the 2016 election.
"It's vitally important that the special counsel be allowed to complete his investigation," Barr said at the time.
Sen. Lindsey Graham, R-S.C., asked Garland whether he had read a Justice Department inspector general report, which has seemed to form the basis of Durham's investigation. The report was particularly critical of one aspect of the FBI's investigation of Trump's 2016 campaign: the applications to the Foreign Intelligence Surveillance Court to surveil former Trump campaign adviser Carter Page.
Garland said he had, and his "general take is that there were certainly serious problems with respect to [those] applications, particularly for Mr. Page," and he supported examination of that matter. When pressed more explicitly for a full-throated endorsement of Durham, he demurred.
"Do you believe the Durham investigation is a legitimate investigation?" Graham asked.
"I don't know anything really about the investigation," Garland responded.
Asked later why he would not endorse Durham as Barr had for Mueller, Garland responded: "I don't know what went into his consideration, but for myself, I have to be there and learn what's going on."
Similarly, when asked about U.S. Attorney David Weiss's ongoing investigation into Hunter Biden, President Joe Biden's son, Garland did not offer specific commitments but said: "I understand that the Delaware U.S. attorney was permitted to stay on as U.S. attorney, and I, again, have absolutely no reason to doubt that was the correct decision."
Cabinet nominees often seek to deflect demands for specific actions or policy goals, and Garland's current job as a federal judge led him to be circumspect in his answers.
Garland declined to answer when asked about whether he supported carrying out the federal death sentences of those already convicted of crimes, including the defendant in the Boston Marathon bomber and the white supremacist who shot and killed nine members of a Black church in 2015.
He said that he supported the death penalty for McVeigh and harbored no regrets, but that his views had since evolved. Now, Garland said, he had "great pause" about the death penalty because of its disproportionate impact on Black Americans and other minority communities, and because of the number of defendants being exonerated by new DNA evidence.
He hinted that the Justice Department probably will return to its posture in the Obama administration, when there was a moratorium on executions while officials reviewed the agency's protocols, even as it continued to seek and win death sentences in some trials. Biden opposes the death penalty and has said he will work to end its use.
"I expect it's not at all unlikely that we will return to the previous policy," Garland said. He added: "I would not oppose a policy of the president because it is within his authority to put a moratorium on the death penalty in all cases and instead to seek mandatory life without possibility of parole, without any consideration of the facts of any particular case."
The Trump administration restarted federal executions for the first time since 2003, and under Trump the government carried out the highest number in a single year.
In his opening statement, Garland, 68, emphasized the Justice Department's 150-year history of battling discrimination in American life, and he highlighting his experience in pursuing domestic terrorists.
Garland told lawmakers that his confirmation would be "the culmination of a career I have dedicated to ensuring that the laws of our country are fairly and faithfully enforced, and the rights of all Americans are protected." He repeatedly promised independence from the White House on law enforcement matters.
"I can assure you I do not regard myself as anything other than the lawyer for the people - I am not the president's lawyer, I am the United States' lawyer," Garland said in response to a question from Sen. Ted Cruz, R-Texas.
Before becoming a judge, Garland was best known in legal circles for his role guiding the investigation and prosecution of McVeigh, the man who detonated a bomb outside a federal building in Oklahoma City in 1995, killing 168. McVeigh was convicted and sentenced to death, and in 2001 he was executed.
Garland said his previous work is particularly relevant now, noting that if confirmed he will supervise the prosecutions of white supremacists and others who forced their way into the Capitol on Jan. 6, which he called "a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government."
Growing emotional, he said that his grandparents had fled anti-Semitism before coming to the U.S., and that he wanted to return the kindness America had shown his family.
"I feel an obligation to the country to pay back," Garland said. "And this is the highest, best use of my own set of skills to pay back."
Garland said that as he receives briefings on the riot, he will seek to determine whether U.S. laws are sufficient for prosecuting wrongdoers and stamping out domestic terrorism. He said that he did not oppose a legislative commission to look into the matter, but that he hoped lawmakers would make sure their work did not interfere with prosecutors' investigation.
Biden picked Garland as an antidote to what he has criticized as the intense politicization of the Justice Department during the Trump administration. Garland told lawmakers Monday that he would work to quickly improve morale among Justice Department employees and make clear that his job "is to protect them from partisan or other improper motives."
While he said he would prefer to mingle with employees in the cafeteria and the Great Hall of the department's headquarters to "let them hear what's in my heart about this," Garland said he would have to introduce himself to employees remotely because of the coronavirus pandemic.
Garland was nominated to the Supreme Court during the Obama administration, but Republican senators refused to even consider the pick and Trump eventually filled the judicial slot with Neil Gorsuch. He has spent the past two decades as a federal appellate judge in D.C., and he is known as a moderate with a knack for building consensus.
His nomination has public support from more than 150 former Justice Department officials from both major political parties and 61 former federal judges, as well as civil rights groups, the Fraternal Order of Police and the International Association of Chiefs of Police. He said forcefully at Monday's hearing, "President Biden has said he does not support defunding the police, and neither do I."
Republicans worry Garland might abandon some initiatives undertaken by the Trump administration that they favor - including beefed-up protection of religious liberties, or getting the department out of the business of forcing court-monitored changes at local police departments - for more liberal policies. Acting attorney general Monty Wilkinson has rescinded some Trump-era policies, and the Justice Department has changed course in some legal cases.
Garland signaled that the department probably will do more - for example, resuming broad investigations of police departments, resulting in court-enforced consent decrees, that were largely abandoned in the Trump administration.
"Where they are necessary to assure accountability, it's very important that we use that tool," Garland said.
He said the department should not return to the policy imposed by Attorney General Jeff Sessions of requiring prosecutors to charge the most serious offense possible, even if doing so may trigger mandatory minimum sentences. Wilkinson had revoked that directive, and Garland did not say specifically what new guidance he would offer.
Sen. Mike Lee, R-Utah, pressed Garland for new insight into his views on gun rights and the Second Amendment without taking a personal position on restrictions on certain firearms. In 2007, Garland voted to rehear a D.C. Circuit decision striking down Washington's restrictive ban on handguns. Garland said he voted to revisit the ruling and to give the city another opportunity to defend the ban because it was the first time an appeals court had declared an individual right to keep and bear arms - a ruling eventually upheld by the Supreme Court.
"It's not a vote on the merits of the case," Garland said in response to a question from Lee. "I thought this was extremely important issue, important enough since it was the very first time."
Garland said he supports universal background checks for gun owners to ensure, for instance, that convicted felons are not able to obtain firearms. He declined, however, to state his personal view of bans on certain guns supported by Biden.
"The role of the Justice Department is to advance the policy program of the administration as long as it is consistent with the law."
In 2000, Garland ruled that D.C. residents do not have the constitutional right to voting representation in Congress. Garland, who lives in Maryland, wrote that the city is not a state, and that the constitution grants congressional voting representation only to state residents.
Asked about the ruling Monday, Garland said the decision made him "sad" because he personally believes D.C. residents should have a vote. But, he said, it reinforced what it means to be a judge.
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