On Monday, Merrick Garland, President Joe Biden’s nominee for attorney general, pledged to prioritize prosecuting those responsible for the Capitol riot on January 6, 2021. Garland, who led the Department of Justice’s prosecution of the 1996 Oklahoma City bombing, said that domestic terrorism in America today is “more dangerous” than at the time of that bombing. He also pledged to continue the investigation wherever it takes him, including “aiders and abettors who were not present on January 6.”
“From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government. If confirmed, I will supervise the prosecution of white supremacists and others who stormed the capitol on January 6th — a heinous attack that sought to disrupt a cornerstone of our democracy,” Garland said in his opening testimony.
Attorney general nominee Merrick Garland committed to the Senate Judiciary panel that if he is confirmed, he will prosecute those involved in the Jan. 6 Capitol insurrection https://t.co/ReNIyiMPTA pic.twitter.com/un1JQzMlOh
— POLITICO (@politico) February 22, 2021
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Sen. Dick Durbin (D-Ill.) asked Garland whether or not he considered the Capitol riot a “one-off.” Garland rejected that idea, arguing that domestic terrorism today is more dangerous than it was in 1996 and drawing a connection between the Capitol riot, the Oklahoma City bombing, and the original Justice Department’s cases against the Ku Klux Klan.
“I don’t think that this is necessarily a one-off,” Garland said, citing an “enormous rise in hate crimes. There is a line from Oklahoma City and there’s another line from Oklahoma City all the way back to… the battles of the original Justice Department against the Ku Klux Klan.”
“I certainly agree that we are facing a more dangerous period than we faced in Oklahoma City at that time,” the nominee added.
Chair @SenatorDurbin questions Merrick Garland on how he'll approach domestic terrorism cases: "What kind of forces are at work to destroy the American dream?"
Judge Garland commits to doing “everything in my power to ensure that we are protected.” pic.twitter.com/AQMgGJN146
— Senate Judiciary Committee (@JudiciaryDems) February 22, 2021
Garland told Sen. Diane Feinstein (D-Calif.) that his investigation into the Capitol riot will trace the root causes of the violence. “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,” he said.
Sen. Sheldon Whitehouse (D-R.I.) asked Garland if his investigation will “try to find the kingpins and that you will not rule out [the] investigation of funders, organizers, ringleaders, or aiders and abettors who were not present on January 6.”
“We will pursue these leads wherever they take us,” the nominee responded.
An ex-prosecutor, @SenWhitehouse grills Garland on whether he look "upstream" in Capitol siege investigations—not only focusing on those inside the building, but "funders, organizers, ringleaders and aiders and abetters" not present.
No boundaries to his probe, Garland replies. pic.twitter.com/sblrqFHdaK
— Adam Klasfeld (@KlasfeldReports) February 22, 2021
Garland also attempted to draw a distinction between the violent riots targeting the federal courthouse in Portland and the Capitol riot.
“An attack on a courthouse while in operation, trying to prevent” public duties, “that plainly is domestic extremism, domestic terrorism,” Garland said. “An attack simply on government property at night… is a clear crime.”
“Both are criminal but one is a core attack on our democratic institutions,” the nominee argued.
Garland has a reputation for impartiality, but his remarks on January 6 should worry conservatives. Republicans have joined Democrats in calling for a serious prosecution of those responsible for the violence, and the DOJ should indeed take this attack very seriously.
However, the attack on the Capitol should be considered a “one-off.” The riot took place after a Donald Trump rally nearby. At the time, the president had encouraged Congress to block the counting of Electoral College votes in the 2020 presidential election. Trump urged his supporters to rally peacefully and he did not encourage violence, but the riot only makes sense in the context of his election challenge.
After the riot, Trump officially conceded the 2020 election. He left the White House and allowed Joe Biden to become president on January 20. Although some militia groups like the Three Percenters and the Proud Boys were involved in the Capitol riot, these groups would not have launched a breach of the U.S. Capitol without the context of January 6.
Some Democrats have celebrated Garland’s response to Whitehouse’s question about pursuing the “ringleaders” of the Capitol riot, suggesting that the DOJ should pursue Trump for his alleged role in inciting the riot. Garland should make it clear that the DOJ will not attack the former president. An incitement charge in this context would almost certainly fail in court and an investigation into Trump would only divide the country further.
While some of the rioters did identify themselves as “white supremacists,” racism was not the motivating factor for the riot — the claim that Democrats had stolen the 2020 election was. While the riot was a heinous black mark in American history, Garland’s rhetoric tracing the riot back to the Ku Klux Klan is unwarranted.
Garland’s rhetoric about the KKK and his claims that the threat of domestic terrorism is worse in America today than it was at the time of the Oklahoma City bombing seem to prop up the idea that racist far-right extremism poses an imminent threat in America. Using similar logic, some Democrats have weaponized the Capitol riot to demonize their opposition and call for a new domestic “War on Terror” apparently targeted at conservatives.
Former CIA Director John Brennan warned against an “unholy alliance” including “religious extremists, authoritarians, fascists, bigots, racists, nativists, and even libertarians” that “looks very similar to insurgency movements that we’ve seen overseas.” These remarks came amid leftist calls for “deprogramming,” “de-Baathification,” “re-educating,” and “reprogramming” the 75 million people who voted for Trump.
House Speaker Nancy Pelosi (D-Calif.) has strained to pin various crimes on former President Donald Trump for the riot. Last month, she accused Trump of being an “accessory” to “murder.” She also suggested that her Republican colleagues who contested the election results may be “accessories to the crime.” She has called for a 9/11-style commission into the Capitol riot, explicitly connecting it with the deadliest terrorist attack in American history.
A mere week into Joe Biden’s presidency, the acting secretary of Homeland Security issued a domestic terror alert warning that “some ideologically-motivated violent extremists with objections to the exercise of governmental authority and the presidential transition, as well as other perceived grievances fueled by false narratives, could continue to mobilize to incite or commit violence.”
On the campaign trail, Biden said he plans to prioritize passing a law against domestic terrorism. His blatant double standard in vocally condemning the Capitol riots while coddling the antifa and Black Lives Matter rioters who burned cities this past summer does not bode well for a balanced implementation of any terrorism law.
Even former Democrat Rep. Tulsi Gabbard has vocally warned against leftists “who are trying to undermine our constitutionally-protected rights and turn our country into a police state with KGB-style surveillance.”
This entire effort seems to constitute a government enforcement of the tactics of the Southern Poverty Law Center (SPLC), a corrupt smear factory that weaponizes its history in bankrupting the Ku Klux Klan to brand mainstream conservative and Christian groups “hate groups,” placing them on a list with the Klan. This defamation inspired an attempted terrorist attack at the Family Research Council in 2012.
Garland should indeed prosecute the Capitol rioters and the Department of Justice should do so aggressively. But it is vitally important that this investigation does not morph into a domestic “War on Terror” targeting conservatives or those who supported Trump in the 2020 election. Garland should pledge not to rely on the SPLC and he should explicitly reject the idea of surveillance against conservatives.
During his hearing, Garland pledged not to use the DOJ to target Americans based on their politics. He did not address Gabbard’s concerns or disavow using research from the SPLC, however.
Garland needs to make it clear that his investigations will not dog former President Trump, that he will not rely on the SPLC, and that he will not launch surveillance against conservatives for their political opinions.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.