GOP Rep. Devin Nunes of California, chair of the House Permanent Select Committee on Intelligence, may invite Chief Justice John Roberts to testify before the panel on alleged FISA abuses.
Nunes told radio host and Republican wise man Hugh Hewitt Thursday that committee Republicans have entertained the idea, as Roberts appoints all FISA judges, but cautioned that no decision has yet been made. Hewitt and Nunes discussed the idea in connection with the committee’s memo on the secret intelligence courts, which alleged the FBI sought authorization to surveil President Donald Trump’s campaign aides on the basis of political opposition research.
“Now the chief justice appoints the FISA judges,” Hewitt said. “Have you had a chance to chat with him or any of the FISA judges about what went on at the FISA court with regard to the [Carter] Page application?”
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“This is something that we’ve been grappling with all through this investigation,” Nunes replied. “We decided that we wanted to complete the FISA abuse portion before we approached the courts. Our next step with the courts is to make them aware, if they’re not aware already, so we will be sending a letter to the court.”
He added that Roberts may yet be invited to testify.
“I would encourage you to do that, because I would like to see if the chief justice would inform you of their reactions,” Hewitt said.
It’s not clear what purpose, if any, Roberts’s testimony could serve. Steve Vladeck, a constitutional and national security law professor at the University of Texas, told The Daily Caller News Foundation that the chief has no authority to supervise the FISA courts, meaning his testimony would be of limited utility:
There’s no mechanism for the chief justice to police the FISA court other than as part of the appellate review that the Supreme Court may exercise in cases arising from that court. Indeed, although FISA empowers the chief justice to designate judges to the FISA court, it says nothing at all about supervising them thereafter — or removing them prior to the expiration of their seven-year terms.
Vladeck also noted that the justices restrict their comments on specific matters of law to the cases properly before the high court and have never been invited to Congress to answer substantive legal questions.
“There is absolutely no circumstance in which it would be appropriate, formally or informally, for the House Intelligence Committee to seek the chief justice’s views on the legal validity of a specific FISA order,” he said.
Congress does not have the power to compel Roberts’s appearance before the committee, though some justices have appeared in the past to discuss administrative issues. Justices Antonin Scalia and Stephen Breyer answered questions before the Senate Judiciary Committee in 2011, where they discussed judicial transparency and the role of judges at a general level.
Nunes himself acknowledged it would be highly irregular to seek the chief’s input on FISA applications.
“I’m not aware of any time where a judge has, for lack of a better term, testified before the Congress,” he conceded.
This report, by Kevin Daley, was cross posted by arrangement with the Daily Caller News Foundation.
