Nunes has considered asking Chief Justice Roberts to testify in FISA warrant controversy
Chief Justice John G. Roberts Jr.
The chair of the House committee that produced a GOP memo alleging surveillance abuse told a radio interviewer that he had considered asking Chief Justice John G. Roberts Jr. to testify.
The comments by U.S. Rep. Devin Nunes, a Republican from California, have raised some concerns, the National Law Journal reports.
The idea of calling a chief justice to testify about a case or controversy would be “more than inappropriate,” Rutgers University political scientist Ross Baker told the publication. “It would be presumptuous.”
The GOP memo, released by Nunes’ committee with the president’s approval, accuses the FBI and Justice Department of submitting a misleading warrant request to the Foreign Intelligence Surveillance Court. According to the memo, the warrant request did not disclose that it relied on information from a dossier financed by Democrats.
In the radio program, interviewer Hugh Hewitt asked Nunes whether he “had a chance to chat” with Chief Justice Roberts or the intelligence court about what went on with regard to the surveillance application. The Hill and TPM have stories; the transcript is here.
“This is something that we grappled with, that we’ve been grappling with all through this investigation,” Nunes replied. He said that the committee decided to “complete the FISA abuse portion” of the investigation before approaching the courts to make them aware of the findings. One concern, Nunes said, is that the committee could “conflict the court” by sending a letter to Roberts.
Hewitt told Nunes that he couldn’t compel Roberts to testify, but the chief justice might accept an invitation to appear in a closed session. Hewitt then asked Nunes if he would welcome such an appearance.
“So this is something that we have, like I said, we have thought a lot about this,” Nunes said. “And the answer is we don’t know the correct way to proceed because of the separation of powers issue. … I’m aware of members of Congress going to the Supreme Court and having coffee with the judges, just to shoot the bull. I’m aware of, you know, dinners where congressmen have been with Supreme Court justices. But I’m not aware of any time where a judge has, for lack of a better term, testified before the Congress.”
The National Law Journal counters that Supreme Court justices have testified before Congress, though their appearances were by invitation. Justices have routinely appeared to answer questions about the court’s budget, and Justices Antonin Scalia and Stephen G. Breyer testified in 2011 about the constitutional role of the judiciary.
Other justices who have testified supported the Judiciary Act of 1925, and discussed ethics and the Nuremberg prosecutions.
The National Law Journal also reports that House Judiciary Committee Chairman Bob Goodlatte, R-Virginia, sent a letter to the chief judge of the surveillance court seeking information about the surveillance request.