Nunes: We've 'grappled' with approaching Chief Justice Roberts

House Intelligence Chairman Devin NunesDevin Gerald NunesRussia probe accelerates political prospects for House Intel Dems Nunes: Russia probe documents should be released before election Gowdy: House Intel panel should release all transcripts from Russia probe MORE (R-Calif.) has weighed whether it would be possible to bring Chief Justice John Roberts to “testify” before Congress as part of his investigation into political malfeasance at the Department of Justice.

In an interview with Hugh Hewitt on Wednesday, Nunes said GOP investigators had “grappled” with how to approach the courts about their
conclusion that the FBI misled a clandestine surveillance court. Roberts appoints the judges to that court.

“This is something that we have, like I said, we have thought a lot about this. And the answer is we don’t know the correct way to proceed because of the separation of powers issue,” Nunes said when asked if he would welcome a committee appearance by Roberts. 

“I’m not aware of any time where a judge has, for lack of a better term, testified before the Congress,” Nunes said.

The “next step,” Nunes said, is to send a letter to courts to make them aware of his findings. But he and his staff are still debating whether to approach the Supreme Court or the surveillance court. 

“If, somehow, this case ends up at the Supreme Court, somehow, some way, by sending a letter to Roberts, do you conflict the Court?” Nunes said, characterizing the internal debate.

A bloc of congressional Republicans, including Nunes and Senate Judiciary Chairman Chuck Grassley (R-Iowa), claim that the FBI inappropriately relied on politically biased material to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) to spy on a former Trump campaign aide, Carter Page.

According to a memo spearheaded by Nunes and declassified by President TrumpDonald John TrumpSunday shows preview: Trump sells U.N. reorganizing and Kavanaugh allegations dominate Ex-Trump staffer out at CNN amid “false and defamatory accusations” Democrats opposed to Pelosi lack challenger to topple her MORE last week, the FBI failed to disclose to the FISC that some of the information in the warrant application was opposition research paid for by Democratic candidate Hillary ClintonHillary Diane Rodham ClintonPompeo: 'We've not been successful' in changing US-Russia relations Michael Moore ties Obama to Trump's win in Michigan in 2016 The Memo: Could Kavanaugh furor spark another ‘year of the woman’? MORE and the Democratic National Committee (DNC).

A footnote in the application describing the material’s origins as political in nature was insufficient, Nunes and Grassley have argued.

“You would think you would go to great lengths to say where you got this from,” Nunes said Wednesday. “And then it’s almost like you had to go out of your way to put the footnote in at the end in order to disguise it so that you’ve basically said ‘oh, no, I did say this,’ when the reality is you really didn’t, right?”

Surveillance experts have cautioned that it is virtually impossible to verify the veracity of Nunes and Grassley’s claims without seeing the underlying warrant applications on Page, which remain classified.

Investigators initially sought a warrant for Page in October of 2016, after the former foreign policy adviser had left the campaign. They sought three subsequent 90-day renewals of that initial warrant.

The legal importance of disclosing an informant’s bias in a given warrant application is often contested in the courts — and depends on the facts of the individual case, lawyers say, making the particulars of the Page application critical to Nunes’s and Grassley’s allegations that the court was misled.

It would be supremely unlikely for Roberts to consent to any kind of appearance before Congress, constitutional and national security lawyers say — a conclusion that Nunes and his staff also appear to have reached. 

“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,” Nunes said.

Two Supreme Court justices do testify before the House on budgetary matters, but they refuse to answer any questions about ongoing cases.

“Even if Roberts accepts the invitation (which he will not), he would not discuss anything that could be implicated in a pending case,” Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and a member of the conservative Federalist Society, wrote in an email. 

The controversy over the GOP’s allegations of a corrupted surveillance system has put a bright spotlight on the FISC, a clandestine court that privacy advocates have long argued is in need of greater transparency.

Roberts himself has faced controversy over the court’s makeup in the past. Critics argued that he selected too many Republican-appointed judges to the FISC — 11 in total — including presiding judge Rosemary Collyer, who was originally appointed by George W. Bush.

Roberts has since named several judges originally appointed by Democrats.

A spokesman for Nunes did not immediately respond to a request for comment.