His remarks made clear that his tenure will be defined by how he responds to the Jan. 6 riot, which resulted in the deaths of a police officer and four others, and to the broader threat it exposed.
“We are facing a more dangerous period than we faced in Oklahoma City at that time,” Garland asserted, promising that the ongoing investigation would center not just on the rioters, but on 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, adding later, “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 federal appeals court judge, is expected to be confirmed with bipartisan support in the Senate, where Republican lawmakers refused in 2016 to vote on his nomination to the Supreme Court. A second panel featuring outside witnesses is scheduled for Tuesday, and a confirmation vote is expected in early March.
Monday’s hearing, which lasted less than seven hours with some breaks, was mostly congenial even as Democrats and Republicans pressed the nominee on how he would manage the department and aired grievances about previous administrations.
Republicans sought to extract promises on 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 asserted that the Justice Department had been politicized in the Trump administration, Republicans expressed displeasure with actions during the Obama administration and asked Garland to assure them 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. Sen. Charles E. Grassley (Iowa), the committee’s ranking Republican, 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.” But Grassley noted that when then-attorney general nominee William P. Barr appeared before the committee, he had offered a more firm endorsement of Robert S. Mueller III’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.
Asked later by Sen. Ted Cruz (R-Tex.) for the same commitment, Garland would not budge.
“I’m telling you what I think an attorney general ought to do — which is to look at the facts before making a decision. I’m also telling you that I will never make a decision in the department based on politics or partisanship,” Garland said.
Similarly, when asked about Delaware U.S. Attorney David C. Weiss’s ongoing investigation into Hunter Biden, President Biden’s son, Garland did not offer specific commitments.
“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,” he said.
Cabinet nominees often seek to deflect demands for specific actions or policy goals, and Garland’s current job as a federal judge led him at times to be even more 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 bombing and the white supremacist who shot and killed nine members of a Black church in 2015.
He said 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 is likely to 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, adding later, “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.
Garland, 68, 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 have grown pretty immune to any kind of pressure other than the pressure to do what I think is the right thing, given the facts and the law,” he said. “That is what I intend to do as the attorney general. I don’t care who pressures me in whatever direction.”
Before becoming a judge and going through a high-profile political feud over his Supreme Court nomination, 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 people.
Garland said that 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 last month, an event 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 talked of how his grandparents had fled antisemitism in Eastern Europe before coming to the United States, and 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 Capitol riot, he will seek to determine whether U.S. laws are sufficient for prosecuting wrongdoers and stamping out domestic terrorism. He said he did not oppose a legislative commission to look into the matter, as Democrats and some Republicans have signaled, but emphasized he hoped lawmakers would ensure 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 has spent the past two decades as a federal appellate judge in Washington and 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 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, though, 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 reforms at local police departments — for more liberal policies. Acting attorney general Monty Wilkinson already has rescinded some Trump-era policies, and the Justice Department has changed course in some legal cases.
Garland signaled the department was likely to do even 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 then-Attorney General Jeff Sessions of requiring prosecutors to charge the most serious offense possible, even if doing so might trigger harsh mandatory minimum sentences. Wilkinson already had revoked that directive, and Garland did not say specifically what new guidance he would offer. Garland also said he did not think it was wise to use Justice Department resources to pursue marijuana cases in states that had legalized the drug.
Sen. Mike Lee (R-Utah) pressed Garland for new insight into his views on gun rights and the Second Amendment. 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 an 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,” he said.
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 judge.