Garland Elevates Appellate Unit He Used in Oklahoma Bombing Case

Attorney General Merrick Garland is increasingly turning to an undersized appellate office for counsel on Jan. 6 and other notable criminal cases, a strategy rooted in his time leading the Oklahoma City bombing prosecution.

Garland’s appreciation for the criminal appellate section’s dispassionate legal analysis in securing convictions in the 1995 tragedy is now behind his department’s preference to deploy the unit’s talents at early stages, several of the attorney general’s past DOJ colleagues said.

The approach aims to give prosecutors an edge in trying to win jury trials that will be sustained on appeal. But it’s also causing a resource strain at an office with only 25 to 30 lawyers—a headcount DOJ wants Congress to enlarge. Even as their routine appellate review touches about 1,000 cases annually, they’re now often being redirected to join investigation teams building tricky cases.

Beyond Capitol riot prosecutions, the section’s lawyers are engaged in cases ranging from gang-related violent crime to cryptocurrency fraud. And two of its attorneys have been on loan since last year to Special Counsel Jack Smith’s office investigating former President Donald Trump, according to a former official.

Previously unreported, DOJ’s effort to bulk up the office, and its link to Garland’s career-defining moment, offers a new glimpse into how prosecutors are working to solidify some of the most important and thorniest cases. The section’s reputation for methodical analysis, absent a prosecutor’s zeal, illustrates how the appellate judge-turned-DOJ leader hopes to obtain court victories without compromising the department’s institutional interests.

‘Expanding Mission’

Tucked into DOJ’s budget justification to Congress for the fiscal year beginning Oct. 1 is a proposal to hire more criminal appellate attorneys. Nearly half of its lawyers are on full- or part-time details to support Jan. 6 investigations and other high-profile matters, some at Garland’s request, the Criminal Division wrote in seeking more funds.

“Additional attorney positions are necessary to allow” the appellate section “to fulfill its expanding mission,” according to the budget document, which doesn’t specify the number of lawyers being sought.

Garland’s experience with an embedded criminal appellate lawyer on the Oklahoma City case and the subsequent prosecution of Unabomber Ted Kaczynski, along with Deputy Attorney General Lisa Monaco’s prior service with the office on the Enron Task Force two decades ago, informed early Biden administration discussions about how to leverage the appellate section, several former officials said.

Garland also oversaw the appellate section as a Criminal Division deputy before becoming principal deputy associate attorney general in 1994. When he returned to DOJ in 2021 as attorney general, after nearly 25 years on the US Court of Appeals for the District of Columbia Circuit, the same appellate section chief he’d supervised in the early 1990s, Patty Stemler, was still in charge.

“The fact that the attorney general, the deputy thinks incredibly highly of them and would often want to get their view, get them involved early” and “make clear to people that they were a resource—definitely had those conversations,” said John Carlin, who was Garland’s acting deputy and then principal associate deputy before leaving last year.

Avoiding Pitfalls

Predating the Biden administration, the appellate section emerged as a trusted voice, operating in the background of distinguished cases.

Its attorneys’ names often get omitted from court records, but they’re frequently summoned to warn line prosecutors and senior leaders of potential weaknesses awaiting them in circuit courts or the Supreme Court, said past department lawyers.

Depending on the case, they may temporarily join the prosecution, helping to pick which charges to bring, devising jury instructions, and crafting arguments. More rarely, appellate lawyers have argued sensitive cases before trial judges.

When Garland was dispatched to Oklahoma City in the aftermath of the 1995 truck bombing of the Murrah federal building that killed 168 people, he began making routine calls to the appellate unit.

What started as legal research to support Garland before he’d assembled a prosecution team, soon led him to ask for a dedicated appellate section attorney to join him in ensuring the investigation was ironclad. Stemler gave him Sean Connelly, who would go on to handle a massive volume of pre-trial motions and stay with the case on appeal.

Connelly helped navigate complex pre-trial proceedings, including those that saw the original judge in Oklahoma disqualified, and the venue moved to Denver. He helped DOJ dodge Bill Clinton’s death penalty declaration from tainting the case as prejudged, and saw the convictions of Timothy McVeigh, who was executed, and Terry Nichols, who’s serving a life sentence, upheld on appeal.

Garland stuck with the appellate section embed model when overseeing the Unabomber case. Kaczynski pleaded guilty to murder and other counts in 1998.

Workload Strain

Former officials draw a line between Garland’s work with the appellate section in the Oklahoma City and Unabomber cases to his department now ensuring its input is sought early in ongoing complicated matters.

But the need to staff up as a result is growing acute, according to DOJ’s budget narrative, which was corroborated by recently employed appellate section lawyers.

In addition to losing attorneys to details, DOJ informed Congress that more appellate hiring is necessary due to the deluge of resumed trials paused during the pandemic.

The appellate section’s core responsibilities include drafting briefs that either oppose or support the US Supreme Court granting review of criminal cases, and making recommendations to the solicitor general on whether US attorneys’ offices can pursue appeals of district court decisions.

The growth of special projects requiring extra appellate section support has left fewer remaining lawyers available to complete the office’s bread-and-butter caseload before court deadlines.

“It seemed like there was more and more work to do,” said Joel Johnson, who left in June 2022 after a brief stint at the appellate section. “Extrapolating from that, you can imagine that if more attorneys were getting pulled onto the Jan. 6 cases, that only made the ordinary work of the section more burdensome on those who remained, particularly because a significant portion of the section’s workflow is fairly constant and most be done regardless of how many attorneys are available to do it.”

A department spokesman declined to comment for this article.

‘Humble Gem’

While the challenges created for the two dozen-plus appellate lawyers persist, the DOJ leadership’s desire to tap the section on thorny issues remains unquestioned by prior collaborators.

“The DOJ’s criminal appellate section has long been a humble gem of the department,” filled with seasoned lawyers who appreciate “the longitudinal perspective” of DOJ’s work, said Aloke Chakravarty, a former federal prosecutor who worked closely with the appellate section when prosecuting the Boston Marathon bombing case.

Leaning on the section makes particular sense at a moment when “the department is under added scrutiny and faces accusations of partisan bias,” added Chakravarty, now a partner at Snell & Wilmer. “While it turns over with new personnel, the institutionalists carry a lot of weight.”