In announcing his nomination of Merrick Garland for the Supreme Court on Wednesday, President Obama made special mention of Garland’s work in the wake of the Oklahoma City bombing.
“In the aftermath of that act of terror, when 168 people, many of them small children, were murdered, Merrick had one evening to say goodbye to his own young daughters before he boarded a plane to Oklahoma City,” Obama said. “And he would remain there for weeks. He worked side-by-side with first responders, rescue workers, local and federal law enforcement. He led the investigation and supervised the prosecution that brought Timothy McVeigh to justice. But perhaps most important is the way he did it. Throughout the process, Merrick took pains to do everything by the book.”
As the president noted, Garland has called his work there “the most important thing I have ever done in my life.”
The April 19, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City killed 168 people, including 19 children. It was the deadliest terrorist attack on American soil until September 11. Timothy McVeigh was ultimately convicted of the bombing and executed in 2001. Terry Nichols was sentenced to life in prison without parole. A third man, Michael Fortier, testified against McVeigh and received a 12-year sentence for failing to warn the government about the planned attack.
What was Garland’s role in the case, how did it affect him, and does it offer any window into how a Justice Garland might approach the law?
At the time, Garland was principal associate deputy attorney general, a top aide to Deputy Attorney General Jamie Gorelick. When the bombing happened, Janet Reno’s Justice Department quickly took command of the case, sending Garland and Gorelick to Oklahoma, as Obama noted Wednesday. Garland was on the ground on April 21, two days after the bombing. “He not only volunteered,” Gorelick told The New York Times in 2010, “he basically said, ‘You need to let me go.’” Charlie Savage wrote:
Former colleagues also recalled that Mr. Garland insisted on doing the investigation by the book, like obtaining subpoenas even when phone and truck rental companies volunteered to simply hand over evidence, to avoid any future trial problems. He also made sure there was a prosecutor responsible for keeping victims and relatives informed about the case as it developed.
But Garland’s direct work on the case was short-lived. Later that spring, he returned to Washington, D.C., to take on a supervisory role on criminal cases, including Oklahoma City. He was replaced as lead prosecutor by Joseph Hartzler. According to the Times, Gorelick rejected Garland’s request to directly try the case. Hartzler told Savage that Garland had not micromanaged him.
“I used him as a sounding board,” he said. “He didn’t tell me what to do, and he never made me feel as though I needed to consult him before making a decision. But I often consulted him because he gave such good advice.”
Stephen Jones was the lead lawyer for McVeigh in the case. When I reached Jones on Wednesday, the first thing he told me was that he was “a partisan Republican. I’ve been a Republican since I was 12 years old.” (Jones was the GOP nominee for Senate in Oklahoma in 1990, but lost.) Then he proceeded to praise his former opposing counsel at length.
“I agreed with everything the president said about Judge Garland,” Jones said, adding that he was encouraging the Sooner State’s two Republican senators to back Garland. “Personally he’s above reproach. He has integrity. He has the skills.”
He remembered Garland as a responsive, humble, and meticulous prosecutor in the Oklahoma City case. “He certainly returned every phone call,” Jones said. “If he said he was going to get back in touch that afternoon, you could rest assured that by 5 o’clock he did that.” He said Garland would dial Jones directly and gave him his cell phone, rather than working through secretaries—a level of courtesy to be hoped for but not always met in officials at his level.
The government’s approach to the case, under Garland’s direction, was fair, Jones said, though he added, “I think some of the decisions made later on boiled down to a pragmatic approach” not to pursue other accomplices. Jones said he was most impressed by the efforts Garland made to meet his request for a private meeting with Attorney General Reno to discuss whether the government would seek the death penalty. “I was pleasantly surprised and pleased that Merrick was willing to arrange it,” he recalled. (The meeting was ultimately canceled after McVeigh withdrew authorization to hold it.)
That seemed to fit with a generous mindset, Jones said. “I watched him do the preliminary hearing with Terry Nichols, and afterwards he walked over and shook [Nichols attorney Michael] Tigar’s hand and said, ‘Well, I’m impressed,” Jones said.
Tigar, for his part, did not recall the incident, and remembered the government lawyer as being a distant figure in the case.
“Garland showed up for a bail hearing ... and that’s the only time I can remember him doing anything in the case,” Tigar said. “He had been sent out from Washington, D.C., and that was it. How he got the reputation as having a great deal to do with it—you couldn’t prove it to me.”
At the Justice Department, Garland went on to supervise other high-profile bombing cases, including the 1996 Atlanta Olympics attack and the prosecution of the Unabomber.
It's tough to predict how these experiences might influence Garland’s judicial philosophy. “I don’t know that it would necessarily be indicative of what type of justice he would be,” Jones said. One possibility, however, is that Garland’s experience prosecuting these horrific, high-profile cases has led him to be favorable to the government in criminal cases on the bench.
As Tom Goldstein wrote in 2010, when Garland was previously considered for the high court, the judge “rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein added:
Most striking, in ten criminal cases, Judge Garland has disagreed with his more-liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant …. One might expect that a judge with such a record on criminal law questions would be generally quite conservative across the board. That does not appear to be true, however.
On one occasion in the Oklahoma City case, Garland displayed some skepticism of the presumption of innocence. Tigar, defending Nichols, pointed out that his client had turned himself in to the police shortly after the bombing. (McVeigh fled after the bombing.) Quoting the Bible, Tigar said, "The guilty flee when no man pursueth, but the righteous are as bold as a lion.” Garland dismissed the contention out of hand, with a somewhat confusing reply: “He came in voluntarily after he knew he was being looked for. That does not suggest innocence.” (Would running away have been more exculpatory?)
For progressives worried about Garland’s progressive bona fides, and for conservatives and liberals who admired the late Justice Antonin Scalia’s frequent stands on the side of defendants, statements like this may cause unease.
So, too, might Garland’s record on national-security issues. Ben Wittes, who has tended to back greater government powers in the fight against terrorism, writes on Lawfare that Garland was Gorelick’s right-hand man at a time when “Gorelick was attempting a certain degree of integration between spies and cops, the Justice Department faced major espionage cases, and it sought and received expanded surveillance authorities under FISA.” Yet Garland also made a crucial 2013 ruling on drones, demanding the Obama administration provide more information.
In other words, it’s tough to trace direct lines through Garland’s pre-bench career to try to understand what sort of justice he’d be. That’s probably exactly how he, and the president, would like it.
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