MSNBC "The Rachel Maddow Show" - Transcript: Interview with Sheldon Whitehouse

Interview

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SEN. SHELDON WHITEHOUSE (D-RI): Thanks. Wonderful to be with you.

MADDOW: What was the basis of your case to Attorney General Merrick Garland that shouldn`t appeal that ruling from the judge, that he should facilitate the public learning about what the former Justice Department did when they had to -- when they`re confronted with potentially charging President Trump?

WHITEHOUSE: Well, it was, obviously, very controversial decision at the time and there was a lot of anger and angst about what`s going on with the Department of Justice. And then along comes the decision from Judge Jackson that required the report be disclosed.

And in doing so, she made some powerful findings. She said that the DOJ prosecutors, particularly from the Office of Legal Counsel, had been disingenuous from the court, which is brutally strong language from a court to a federal prosecutor, particularly to a senior federal prosecutor, high up in the Department of Justice.

And that the affidavits that they filed under oath, we`ll read it here, were so inconsistent with the evidence that they`re not worthy of credence. That`s an unbelievably strong comment from a federal judge. It`s not the first harsh commentary about the Office of Legal Counsel.

So, at this point, it really to us made no sense not to just clear the air of this, go with the judge`s decision with the department and every reason to pursue it. And not continue to drag the department through the nightmare of its own misstatements and misleading statements to the court. We`re right to read all of that apologetic makeup stuff they`ve tried to do. But point of fact, the Department of Justice should never be there in the first place.

That`s why you`re the Department of Justice. It`s not so the judge say that you`ve been disingenuous to the court and that you file affidavits that are so inconsistent with the evidence that they don`t merit credence. You`re the Department of Justice because you`re there to do justice.

MADDOW: In terms of what the Justice Department should do now -- obviously, you disagree with this decision to appeal the judge`s ruling. You think that this material should be made public. That will be a source of continued litigation. That will be decided in court ultimately.

But what about the substantive question that`s at the heart of this, which is that the Justice Department under the previous president being confronted with hundreds of pages of detailed evidence about him potentially committing felony, obstruction of justice while he was president? We now know it`s because of this litigation that the Justice Department never substantively considered that evidence. Should they now substantively consider that evidence?

WHITEHOUSE: Well, if you said that you didn`t consider the OLC policy that a sitting president can`t be indicted, so that`s not your reason for not proceeding. And you haven`t actually considered whether or not you should proceed, or by implication, you made the decision you should not proceed irrespective of that, on the merits, I think that`s a question that you then have to be prepared to defend.

What it looks like is they really never made that decision. And part of Judge Jackson`s anger I think was that they were treating it as pre- decisional so determination about the president`s culpability, what was actually strategic public relations framing of how they`re going to roll out the performance that they`re engaged in. And she, I think, properly said I think that`s not pre-decisional when what you`re doing is just trying to cook up what you`re going to tell the public.

So, they`ve got I think a lot of problems that this case opens up that merit pursuit. And if, in fact, the OLC firewall is absolute that a sitting president can`t be indicted, well, that`s past. So, that`s the decision for Garland to have to make, but the longer that he keeps us this open, the more alive this is going to stay, and the more the pressure is going to build for a real decision.

At this point, it appears that the department has not made a real decision on whether or not President Trump committed obstruction of justice, and we are entitled, I think, to that decision and to a credible defense of it.

MADDOW: Rhode Island U.S. Senator Sheldon Whitehouse -- sir, thank you for joining us. You`re in a unique position to be able to help us understand the context here. Thanks for being with us tonight, I really appreciate it.

WHITEHOUSE: Thank you.

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