Unabomber case helped hone Supreme Court nominee’s legal skills

The killer known as the Unabomber was methodical, patient and meticulous. So was the U.S. Justice Department official who directed the investigation that took him down.

Former colleagues of U.S. Supreme Court nominee Merrick Garland cite his legal skills in the courtroom and in overseeing the mid-1990s Unabomber and Oklahoma City bombing investigations as evidence that pragmatism and common sense, not an elaborate constitutional philosophy, would guide his decisions as an associate justice.

Garland led the investigation task force and helped make “the hard decision” to ask the Washington Post and the New York Times to agree to publish the Unabomber’s 35,000-word manifesto, said former Deputy Attorney General Jamie Gorelick. That led to the arrest of Theodore Kaczynski after his brother recognized the writing style and alerted the Federal Bureau of Investigation.

“He is smart, smart, smart – he blends the theoretical and the professorial part of the law with the retail aspect,” said Marshall Jarrett, a retired Justice Department official who helped recruit Garland for the U.S. attorney’s office. Garland’s experience as a courtroom prosecutor and later as a senior Justice Department official makes him “attuned to the kinds of issues faced in criminal law enforcement," said Jarrett.

Even as they laud Garland’s temperament and legal ability, these former colleagues are unlikely to get a chance to sing his praises at a confirmation hearing any time soon. Garland’s nomination is turning into a bitter contest between President Barack Obama and Senate Republicans, who say the next occupant of the White House should choose who succeeds the late Justice Antonin Scalia.

The White House and Senate Democrats have helped outside groups organize political protests to pressure vulnerable Senate Republicans seeking re-election to abandon the confirmation blockade announced by Majority Leader Mitch McConnell within an hour after the court confirmed Scalia’s death on Feb. 13.

‘Common effort’

As a senior Justice Department official, Garland had the ability “to bring very different types of people together in a common effort from the Oklahoma City bombing investigation to the very challenging Unabomber case,” said Gorelick. Garland was her principal deputy when the government prosecuted the two domestic terrorism cases.

“He has seen the effect of the devastation of crime on communities up close; he has worked with witnesses and victims as much as anyone” on the Supreme Court, Gorelick said in an interview.

Garland, 63, an appeals court judge since 1997, demonstrated early promise as a trial lawyer in 1988 as part of a team of private lawyers who helped win a $112 million civil judgment over the failure of a Maryland thrift institution. His insistence on examining only original records – not just photocopies – paid off when lawyers found a document on which someone had used white correction fluid to change a date.

With the document in evidence, Garland asked the trial judge to turn off the courtroom lights so jurors could see the fraud for themselves. “The real date came shining through” as jurors, one by one, held a flashlight behind the paper, said Philip Horton, a lawyer on the case.

“You could see from the looks on the jurors faces” that “the case is over,” Horton said. “This was the smoking gun to end all smoking guns.”

Drug gangs

Garland learned the ropes of criminal law during a three-year stint as a federal prosecutor in the U.S. attorney’s office in Washington, a job he took in 1989 after leaving a partnership at the prestigious law firm of Arnold & Porter. He prosecuted violent drug gangs, government-contract fraud and corruption.

His attention to detail, management skill and legal judgment were tested in Oklahoma City after the April 19, 1995, truck bombing of a federal government building killed 168 people, including 19 children in the building’s day care center.

Garland persuaded Gorelick to send him to the crime scene, where he coordinated the Justice Department’s investigative efforts to identify and arrest Timothy McVeigh and Terry Nichols, the two home-grown terrorists convicted of the bombing. McVeigh was executed in 2001 and Nichols was sentenced to 161 consecutive life terms.

Garland showed compassion for the victims’ families while maintaining a critical perspective of the evidence and legal pitfalls in the case, Beth Wilkinson, one of the prosecutors in the McVeigh case, said in a 2010 interview when Garland was on Obama’s short list for another Supreme Court vacancy.

‘Lived the case’

“He lived the case” yet “he was still able to step back and be a thoughtful and fair advocate, ask us questions a judge might ask us,” she said. “He has that kind of judicial temperament and real empathy and understanding” of the attack’s impact on the people of Oklahoma City, she said. “He believes that working on that case changed him."

To be sure, Garland’s opinions on the U.S. Court of Appeals for the District of Columbia Circuit have earned him a reputation as “not being particularly sympathetic to criminal defendants,” Jonathan Adler, a law professor at Case Western Reserve Law School in Cleveland, said in an interview.

In a blog post, Adler said Garland is “likely to read constitutional guarantees for criminal defendants more narrowly” than Scalia was known to do at times. Garland’s opinions suggest he would accept arguments that these rights “must be read flexibly, with an eye toward the practical consequences of given rules." That would align him closer to one liberal member of the court, Justice Stephen Breyer, and two conservatives, Anthony Kennedy and Samuel Alito, a former chief federal prosecutor in New Jersey, Adler wrote.

Herman Schwartz, a law professor at American University in Washington, said he joins Democratic presidential candidate Bernie Sanders “in thinking we could do better” than Garland and find someone who isn’t as pro-government on criminal and national security cases.

Schwartz said Garland “unforgivably” voted with two Republican-appointed appeals court judges in 2003 to rule that 12 detainees captured in Afghanistan couldn’t challenge their incarceration at Guantanamo Naval Base in Cuba in U.S. courts. That decision, later reversed by the Supreme Court, held in effect that “Guantanamo was a legal black hole,” Schwartz said.

Unabomber task force

Gorelick said Garland’s coordination of the Unabomber task force brought “cohesion” to the investigation by numerous federal prosecutors of a series of package bombs that killed three people and injured 23 more across the U.S. between 1978 and 1995.

The case gained renewed urgency in 1995, just as Garland was directing the investigation in downtown Oklahoma City. The Unabomber struck for the 16th time on April 24, 1995, five days after the Oklahoma City blast.

Garland “was the person speaking for the attorney general” while leading task force meetings on the investigation, Gorelick said.

Two months after the last bombing, the New York Times received the 35,000-word manifesto written by the person the FBI believed was the Unabomber.

The September 1995 publication of the manifesto led to the arrest seven months later of Kaczynski, a recluse who lived in a remote cabin in Montana. Kaczynski’s younger brother, David, and sister-in-law notified the FBI of their suspicions that he wrote the manifesto. Kaczynski pleaded guilty and is serving life in prison without parole.

During the Justice Department investigations of two major cases of domestic terrorism, Garland brought calm, patience and determination, former colleagues said. This experience forged the kind of judge he would make, they said.

Garland will “have the perspective of someone who has actually been in the trenches doing the stuff” of litigation, said Horton, a retired partner at Arnold & Porter. Such experience makes him “able to render decisions that will be practically workable in the world, at least in the real world of the courts."