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MSNBC "The Rachel Maddow Show" Interview - Transcript


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MS. MADDOW: Joining us now is Congressman Adam Schiff, Democrat of California, a member of the House Appropriations Committee. He questioned Attorney General Holder in that committee today.

Congressman Schiff, thank you so much for joining us.

REP. SCHIFF: Thank you. Great to be with you.

MS. MADDOW: You argued really passionately today during that hearing for the need for accountability on the issue of torture. I have to ask if that would mean that you would support an inquiry into the possible impeachment of Judge Bybee.

REP. SCHIFF: Well, I think there should be a complete investigation, and I hope that's what OPR is doing right now. But I don't think we should stop at OPR. When OPR finishes its report, I think the Judiciary Committee ought to have hearings on it. And then we should determine what next steps to take. And I have to say that at this point I'm inclined to think that maybe Senator Leahy made a good suggestion when he said the judge ought to consider resigning from the bench.

I think plainly, if the Senate committee that was handling the confirmation hearings knew then what we know now, he would not have been confirmed for the 9th Circuit, and for several reasons, not the least of which that the amateurish quality of these legal opinions, the conclusions he reaches is not the kind of legal thinking that we want on the Court of Appeals, as you say, one level of the court away from the Supreme Court.

So plainly this is a judge who would not have been confirmed. And I don't think we should rule anything out. But I also think that impeachment is a word we should use very carefully and very reluctantly, and not until we've done a thorough investigation, I think, should we be entertaining that kind of extreme remedy.

MS. MADDOW: Attorney General Holder told your committee today that if he finds evidence of wrongdoing, he would pursue it. Of course, during his confirmation hearing in January, he agreed that waterboarding is torture and illegal. And as attorney general, as any prosecutor does, he has prosecutorial discretion about what to do with those two facts here. "It is torture and I have an obligation."

Do you feel like he's obligated to seek prosecutions for the authorization of torture?

REP. SCHIFF: I think that -- and what I urged the attorney general to do today is I think he needs to do a full investigation to determine what the facts are and not prejudge it, not begin before the investigation and say, "I'm ruling out prosecution of people who followed the memos or I'm ruling out prosecution of people who wrote the memos."

I don't think you rule anything out until you really know what the facts are. It may be that people who followed the memos, in fact, exceeded the authority that was given, even these erroneous memos. It may be that the people writing the memos, the attorneys, knew what they were writing was legal gibberish and only sought to give a patina of respectability to torture.

Now, these are difficult things to prove factually, and this is something the attorney general will ultimately have to weigh. Is the evidence there? And beyond that, if the evidence is there, are there some mitigating factors that he should consider in light of whether to go forward with prosecution or not?

I do think there are really only two boundaries he set so far, and I can't quarrel that much with these boundaries, and that is someone who is a ground-level officer of the CIA, who is following these legal opinions in good faith, should ultimately not be prosecuted. That's probably the correct decision. But frankly, that leaves a lot of ground open for others.

And I feel most particularly, I guess, about the lawyers. Having a law degree shouldn't be a Get Out Of Jail Free card. And the lack of sophistication and the way these lawyers bent over backwards to authorize things that, if were done to the lawyers, they would certainly say was torture, if done to you or to me would clearly be torture, I think really should not immunize them from responsibility of any form.

MS. MADDOW: On the issue of the actual interrogators, actual CIA employees, or even contractors who may have been implementing these techniques, are you suggesting that the sort of blanket immunity that has been described by the president, by Attorney General Holder, is inappropriate, that anybody who acted outside the tenets of these memos, however dubious their legal reasoning may be, should also be liable for prosecution if the facts warrant?

REP. SCHIFF: Well, I'm saying -- you know, and I serve, Rachel, both on the Judiciary Committee, the Appropriations Committee and the Intelligence Committee, so I see this from really all these different angles, the need for good intelligence, the need to be able to make sure that we can recruit people in the intelligence agencies and they don't feel like, if they follow the instructions they're given, they're still going to be liable.

I do think that, you know, someone acting in good-faith reliance on a legal memo and follows that legal memo, there's a very strong case to be made that they should not be prosecuted. But again, we could have a situation here where ground-level personnel understood that they were going beyond what these memos authorize, that they were using waterboarding more frequently than these memos authorize. And there may be situations where they knew even that the legal opinions were erroneous.

So I don't think, at the front end, you want to exclude too much. But I do think, you know, there are certainly people who ultimately the attorney general may conclude, and quite rightly, should not be prosecuted. But let's not prejudge it. Let's do the investigation and see -- and allow the chips to fall where they may.

MS. MADDOW: Congressman Adam Schiff, Democrat of California, thank you so much for your time tonight. It's great to have your perspective on this.

REP. SCHIFF: Thank you.

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