The Slatest

What Will Merrick Garland Do About the Capitol Attack?

The would-be attorney general tells senators it’s his top priority.

Garland staring straight ahead not revealing anything.
Attorney General nominee Merrick Garland listens during his Senate Judiciary Committee hearing on Capitol Hill in Washington, DC on February 22, 2021. Al Drago/Getty Images

After a lengthy delay, Judge Merrick Garland finally received a hearing on Monday from the Senate Judiciary Committee about his nomination to be the next attorney general. Republicans never had much against Garland, even back in 2016, when they wanted to steal the Supreme Court seat to which President Barack Obama had nominated him—which was why they refused to hold hearings at all then, rather than try to come up with reasons to vote against him.

Now, most of the Republicans’ criticism was still essentially about Obama, as they nitpicked Garland for having stated he needed to learn more before deciding how the Department of Justice should handle special counsel John Durham’s Crossfire Hurricane inquiry—that is, the Trump administration’s investigation into the Obama administration’s investigation of the Trump campaign’s involvement with Russia.

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But the hearing had a newer and larger potential presidential scandal to discuss: how Garland plans to handle the Justice Department’s investigation and prosecution of those responsible for Trump supporters’ Jan. 6 attack on the Capitol. Particularly, the question hanging over the proceeding was whether or not Garland would allow prosecutors to consider targeting Donald Trump, Rudy Giuliani, and other Republican political leaders who may have incited the attack.

Garland mostly kept his cards close to his vest. Here’s what he did say when asked about how he plans to handle the assault on the Capitol.

Garland said he would directly supervise the investigation.

In his opening statement, he said:

If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6—a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.

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Garland said the investigation appears to be going well so far, but his first priority will be to get a briefing on the probe and commit whatever resources are necessary.

In response to a question by Judiciary Committee Chairman Dick Durbin, Garland said:

It looks like an extremely aggressive and perfectly appropriate beginning to an investigation. … I don’t yet know what additional resources would be required by the department, I can assure you that this will be my first priority and my first briefing when I return to the department if I am confirmed.

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In response to questioning from Sen. Dianne Feinstein:

I think that this was the most heinous attack on the democratic processes that I’ve ever seen and one that I never expected to see in my lifetime. … I intend to give the career prosecutors who are working on this matter 24-7 all of the resources they could possibly require to do this.

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In response to an offer for additional resources from Sen. Lindsey Graham:

I’m eager to have an invitation from the Senate to ask for more resources.

In response to questioning from Sen. Cory Booker:

We … have to allocate our resources towards the biggest threat.

Garland said that his DOJ would look beyond those directly involved in the attack on the Capitol if that’s where the investigation leads.

In response to questioning from Feinstein, Garland said he’d examine white supremacist groups beyond those who attacked the Capitol:

I intend to make sure that we look more broadly to look at where this is coming from, what other groups there might be that could raise the same problem in the future and that we protect the American people.

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Sen. Sheldon Whitehouse asked him if he’d possibly “roll up” those who attacked the Capitol to go after bigger targets:

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With respect to Jan. 6, I’d like to make sure that you are willing to look upstream from the actual occupants who assaulted the building in the same way that in a drug case you would look upstream from the street dealers to try to find the kingpins and that you will not rule out investigation of funders, organizers, ringleaders, or aiders and abettors who were not present in the Capitol on Jan. 6.

Garland responded that he would be open to taking the inquiry in whatever direction it leads:

I began as a line U.S. attorney and as a supervisor. We begin with the people on the ground and we work our way up to those who were involved and further involved and we will pursue these leads wherever they take us.

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Sen. Alex Padilla explicitly blamed Trump for the attack on the Capitol in asking Garland how he would deal with the case. The nominee responded that he would cast a wide net in looking at domestic extremists, but did not address the former president’s role:

We also have to have a focus on what is happening all over the country and on where this could spread or where this came from. And that does require a lot of resources.

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Garland suggested that he does not think additional legal authorities, such as new domestic terror laws, will be necessary.

In a response to Sen. Amy Klobuchar:

The department is probably always looking for new tools, but the first thing we have to do before we look for new tools is figure out whether the tools we have are sufficient. And that will be part of this briefing that I want to have to determine whether the laws—which are quite capable, which were capable of the charges against [Oklahoma City bombers Timothy] McVeigh and [Terry] Nichols and many other terrorists over the years—whether they are sufficient.

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In response to questioning from ranking minority member Sen. Chuck Grassley:

I can’t yet say we have all the resources. … We certainly have authorities to look into it. Whether we have the money and the person-power, I just don’t know yet.

Garland views white supremacist groups as the principal current threat to national security.

In response to Padilla:

I couldn’t agree more that extremist groups, particularly white supremacist groups, do pose a fundamental threat to our democracy and they have posed that threat throughout our history as I recounted and that was the reason the Justice Department was originally established to fight the first incarnation of the Ku Klux Klan. …

I’m very pleased to have read that the director of the FBI believes that this kind of extremism is the most dangerous threat to the country and that’s where he’s putting FBI resources. And that is where I would put Justice Department resources.

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Garland views the sort of extremist violence that culminated in the attack on the Capitol as an ongoing threat and views it in historical context.

In response to Durbin:

I don’t think that this is necessarily a one-off. FBI Director [Christopher] Wray has indicated that the threat of domestic terrorism and particularly of white supremacist extremists is his number one concern in this area. This is coupled with an enormous rise in hate crimes over the past few years. There is a line from Oklahoma City and there’s another line from Oklahoma City all the way back to the experiences that I mentioned in my opening with respect to the battles of the original Justice Department against the Ku Klux Klan.

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Garland promised to recommit additional resources to combating white supremacist violence that had been reportedly blocked by the Trump administration.

In response to questioning from Sen. Mazie Hirono, Garland said:

If anything was necessary to refocus our attention on white supremacists, that was the attack on the Capitol and I expect to put all departmental resources necessary to combat that problem into this area to make sure both our agents and our prosecutors have the numbers and the resources to accomplish that mission.

Overall, Garland issued a very strong promise to pursue the Jan. 6 cases without making any explicit promises about who the department would be pursuing. If the investigations ever do reach all the way to the former president, it won’t be because Garland publicly committed himself to that course of action.

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