Dear Reader,

The 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City seems at once both impossibly distant – could it really have been 28 years ago? – but also still immediate and disturbingly relevant. We remain familiar with the broad outline: Timothy McVeigh and Terry Nichols, two outcasts driven by extremist anti-government ideology, set off a massive truck bomb that destroyed a federal building, killing 168 people, including 19 children. 

The finer details have begun to lapse into the collective void of memory, as they inevitably do with the passage of decades. Yet it all comes roaring back in “Homegrown,” a new book by Jeffrey Toobin. (Toobin is a friend and former colleague of mine.) The book details in captivating fashion how McVeigh plotted and then executed on his deranged obsession, and how he was swiftly brought to justice. More broadly, the book provides insights that remain startlingly relevant today. Toobin’s central thesis, for example, draws parallels between the extremist ideology that drove McVeigh and the deluded insurrectionist frenzy that spurred the January 6 Capitol attack.  

There’s another, more subtle, lesson that emerges; it’s the book’s B story arc, in a sense. When faced with a historic, front-page prosecution of McVeigh, many participants in the criminal justice process held firm to principle. But others compromised fundamental ethics, judgment, and practice to promote their own narrow self-interest. 

The impending prosecutions of former president Donald Trump are, in key respects, nothing like the Oklahoma City case; start with the fact that McVeigh and Nichols were mass murderers of innocents, which placed the stakes far beyond anything Trump-related. But given Trump’s status as a former president, and as the frontrunning Republican nominee in 2024, the worldwide focus on his upcoming cases promises to be all-consuming. As the spotlight intensifies around Trump, we’re seeing worrisome contortions by key players – judges, defense lawyers, and prosecutors alike – who ought to know, and do, better. In that respect, we see echoes of Oklahoma City.

Take, for instance, United States District Court Judge Wayne Alley, who was originally assigned to preside over the McVeigh trial. Judge Alley – an accomplished, deeply respected jurist – had a glaring conflict of interest: the courthouse in which he worked (which stood a block away from the Murrah building), and his own courtroom and chambers, were heavily damaged by the blast. Judge Alley happened to be out of town on the fateful day, but a member of his staff was injured in the explosion. Alley was, in any practical sense, a victim – not on anything near the level of those who died or lost loved ones, but unquestionably a victim nonetheless. Ordinarily, that’s a no-brainer case for recusal. Yet Judge Alley desperately wanted to keep the case. So he wrote a forty-six page opinion explaining, with tortured legal analysis, why he would be capable of ruling without prejudice to either side. Toobin describes Alley’s opinion as “preposterous in every respect.” The federal Court of Appeals saw it the same way and reversed Alley, taking the case away from him and moving it out of Oklahoma altogether, to a federal judge in Denver. 

Judge Alley’s error brings to mind Judge Juan Merchan, who has been assigned to the Trump indictment in New York state court. Judge Merchan has a straightforward conflict of interest: in 2020, while he was a judge, he donated $35 – yes, it’s a preposterously tiny amount but it’s a donation nonetheless– to a political group whose explicit mission was to ensure the election of Joe Biden and progressive candidates, and to resist “the Republican Party and Donald Trump’s radical right-wing legacy.” Judge Merchan’s political contribution violated explicit judicial ethics rules, and any reasonable person can recognize at least the appearance of a conflict where the judge has donated to a cause dedicated to taking down the very same person who sits before that judge in a criminal case. Yet Judge Merchan has thus far declined to recuse himself. Last week, Trump’s lawyers filed a motion seeking the Judge’s recusal. We haven’t yet seen the DA’s response, but it would be foolish and potentially self-defeating (as I wrote here) for prosecutors to oppose the request. Judge Merchan and the DA should take Judge Alley’s plight as a lesson. Fortunately for the McVeigh prosecutors, the appeals court reversed the judge and threw him off the case before trial. But if the ruling had happened after trial, it would have jeopardized the verdict.

McVeigh’s primary defense lawyer, Stephen Jones, fully went off the rails during the Oklahoma City case. He became a constant media presence, openly basking in attention from famous news anchors, and he eventually got a book deal out of it. During his media campaign, Jones frequently made public statements that were either irrelevant or affirmatively harmful to McVeigh’s actual legal defense. For example, Jones became obsessed with and often spoke about a wild conspiracy theory that McVeigh somehow had acted on behalf of foreign terrorists – which, even if true (and it decidedly was not true) nonetheless would have implicated his own client.  

Certain Trump lawyers have shown a similar preference for the cameras over duty. Notwithstanding the fundamental tenet that an attorney owes a continuing obligation of loyalty and confidentiality even to a former client, we’ve seen Trump’s ex-lawyers take to the airwaves to divulge backroom defense team infighting, and to predict Trump’s imminent demise. It’s tough to square an attorney’s continuing duty of loyalty with a public declaration that the former client “will go to jail”, or that prosecutors “have their foot on his neck” – but hey, it got the defense lawyer on camera and some buzz from cable news aggregators, so to heck with the rules.

And then we come to the prosecutors. On the whole, the DOJ prosecutors on the Oklahoma City case showed remarkable drive, professionalism, and restraint, as encapsulated by a sign on the lead prosecutor’s door: “Do not bury the crime in the clutter!” (Merrick Garland, who was then a high-ranking official at Justice Department headquarters, sometimes gets credit for “taking down” McVeigh. But, as the book makes clear, this is an overstatement. Garland did go to Oklahoma City two days after the attack, and he supervised the initial Justice Department response. But, after a few weeks – despite his fervent wish to stay on the case – he was reassigned to the then-pending Unabomber matter. Garland had only minimal, distant involvement in the McVeigh case thereafter.) 

Some of Trump’s prosecutors thus far have failed to measure up to their Oklahoma City forebears. Regular readers of this column are already well familiar with my critique of the collective lack of prosecutorial urgency, which has enabled the Trump investigations to drag on for years. Now, as a result, there’s simply no way he can be charged, tried, sentenced, and heard on appeal before the 2024 election. 

And the Trump prosecutors have been vastly more grandiose than the McVeigh team, which kept mum outside of the courtroom, consistent with prosecutorial norms and best practices. For example, when former Manhattan Assistant District Attorney Mark Pomerantz was told he had to do more work before indicting, he quit and aired his grievances publicly instead. Pomerantz wrote a dishonest, self-promoting book, and then did a media tour in which he sold out his old office and undermined its ongoing Trump investigation. 

At the same time, Fulton County District Attorney Fani Willis has hyped up her own impending indictment like it’s some kind of professional wrestling summer slam, with about the same amount of subtlety. Over the two-and-a-half-plus years of her glacially-paced investigation, Willis has given nearly forty interviews to at least fourteen media outlets. The supervising judge, who has usually sided with Willis, noted disapprovingly at one point that she is “on national media almost nightly talking about the investigation.” During those interviews, Willis improperly gave her opinion that the conduct under investigation was indeed criminal – the very issue before the grand jury, which has not yet been decided – and that Trump acted with criminal intent. Willis has already been thrown off one part of the case because she hosted a political fundraiser for the opponent of a subpoena recipient; the judge noted Willis’s “actual and untenable conflict” and asked, “What were you thinking?” Willis has used her Twitter account to publicly promote a political cartoon that ridicules Senator Lindsey Graham for receiving a subpoena from Willis in this very case. And Willis has encouraged and participated in a Twitter campaign by Democratic party operatives designed to raise “followers, tweets and donations” for Willis based around the Trump investigation.

The legacy of Oklahoma City is with us forever, and the primary lesson will always be about the danger of domestic extremism. And in the coming months we need to be mindful of another truth about our criminal justice process: the bright lights can make for ugly temptation. Lots of people want to be part of these Trump cases, lots of people want the spotlight, and lots of people want the credit for taking him down (or for saving his hide). Most of the participants in the various pending Trump matters have acted admirably and with professionalism. But we can already see that too many key players are willing to bend the normal rules of ethics, law, and sound practice to raise their own profiles, to keep themselves in the game, and to position themselves to “win.” Ultimately, those efforts will be self-defeating – for the principals themselves, and for our justice system as a whole.  

Stay Informed, 

Elie

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