Enforcement Edge
March 4, 2021

Garland Vows to Make Domestic Terrorism a Top Priority but Is More Cautious About Promoting Statutory Changes

Enforcement Edge: Shining Light on Government Enforcement

Just weeks after the January 6 attack on the Capitol, Judge Merrick Garland addressed the problem of domestic terrorism head-on in his confirmation hearing. In his opening statement, he directly tied the DOJ's formation during Reconstruction to its role responding to this newest assault. As he explained, in the 1870s the DOJ led "a concerted battle to protect Black voting rights from the violence of white supremacists, successfully prosecuting hundreds of cases against members of the Ku Klux Klan." Judge Garland stressed that "150 years after the Department's founding, battling extremist attacks on our democratic institutions also remains central to its mission."

Judge Garland brings salient experience to bear in this effort. As Principal Associate Deputy Attorney General, he oversaw the most significant domestic terrorism cases of the late twentieth century, including the Unabomber (Theodore J. Kaczynski), the 1996 Atlanta Olympics, and the Oklahoma City federal building, the deadliest terrorist attack on US soil prior to September 11. Judge Garland described his work on the Oklahoma City case as "the most important thing I have ever done in my life."

Asked by Sen. Dick Durbin (D-IL) whether the Oklahoma City Bombing was related to the Capitol attack in January, Judge Garland explained, "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."

The storming of the Capitol, Judge Garland continued, 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." He explicitly identified the role of white supremacy: "If anything was necessary to refocus our attention on white supremacists, that was the attack on the Capitol." But Judge Garland also repeatedly stressed that, under his watch, the department would pursue all terrorism, regardless of its ideological motivation: "We need to go after violence from whatever direction, left, right, up, down. It doesn't make any difference."

Judge Garland also made clear that getting briefed on the progress of the investigations would be one of his "very first" priorities. He committed "to give the career prosecutors who are working on this matter 24/7 all of the resources they could possibly require to do this . . . . [A]t the same time, I intend to make sure that we look more broadly . . . 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."

While completely receptive to additional resources, Judge Garland was hesitant to support making changes to the current laws. "The department is probably always looking for new tools, but first thing we have to do before we look for new tools is figure out what whether the tools we have [to prosecute and deter domestic terror attacks] are sufficient." While indicating that he was open to changing the laws, Judge Garland stressed, "But I first have to know whether anything more is necessary." When Sen. Chuck Grassley (R-IA) raised the same issue, Garland again said that he "can't yet say we have all the resources."

Judge Garland's response comes on the heels of a growing chorus of support for a domestic terrorism statute. A leading bill, authored by Sen. Durbin, has attracted support from both chambers. For their part, at least a few White House homeland security officials have previously backed a domestic terrorism statute. But whatever statutory reforms are ultimately be on the horizon, addressing domestic terrorism will be a major part of a Garland-led Department of Justice.

*Emily Shire contributed to this blog post. Ms. Shire is a graduate of Yale Law School and is employed at Arnold & Porter's New York office. She is not admitted to the practice of law in New York.

*Sam Kleinman contributed to this blog post. Mr. Kleinman is a graduate of Georgetown University Law Center and is employed at Arnold & Porter's Washington. He is not admitted to the practice of law in Washington, DC.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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