Judge Merrick Garland said that Antifia’s attacks on the U.S. courthouse in Portland last year might not have been “domestic terrorism” because they took place at night while the court was not “in operation.”

Garland is President Joe Biden’s nominee for U.S. Attorney General.  He was questioned by Sen. Josh Hawley (R-MO) at his confirmation hearing:

Sen. Hawley: Let me ask you about assaults on federal property in places other than Washington, DC — Portland, for instance, Seattle. Do you regard assaults on federal courthouses or other federal property as acts of domestic extremism, domestic terrorism?

Judge Garland: Well, Senator, my own definition, which is about the same as the statutory definition, is the use of violence or threats of violence in attempt to disrupt the democratic processes. So an attack on a courthouse, while in operation, trying to prevent judges from actually deciding cases, that plainly is domestic extremism, domestic terrorism. An attack simply on a government property at night, or any other kind of circumstances, is a clear crime and a serious one, and should be punished. I don’t know enough about the facts of the example you’re talking about. But that’s where I draw the line. One is — both are criminal, but one is a core attack on our democratic institutions.

Last August, then-Attorney General William Bar described the courthouse attacks:

Behind the veil of “protests,” highly organized violent operators have carried out direct attacks on federal personnel and property, particularly the federal courthouse in Portland. Shielded by the crowds, which make it difficult for law enforcement to detect or reach them, violent opportunists in Portland have attacked the courthouse and federal officers with explosives, lasers, projectiles, and other dangerous devices. In some cases, purported “journalists” or “legal observers” have provided cover for the violent offenders; in others, individuals wearing supposed press badges have themselves attacked law enforcement or trespassed on federal property. More than 200 federal officers have been injured in Portland alone.

As a result of the riots in front of the courthouse, the courthouse was boarded up. Security equipment was damaged, and windows were broken in the federals prosecutor’s offices.

Garland cited the domestic terrorism statute (18 USC § 2331) which defines “domestic terrorism as follows:

(5) the term “domestic terrorism” means activities that— (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended— (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States

Working hours are not included in the statute.