Devin Nunes Casually Muses About Hauling Chief Justice Before Congress And Defecating On The Separation Of Powers

He's apparently brainstorming on how to do something he has no authority to do.

Chief Justice John G. Roberts Jr.

In normal times, the inability to Constitutionally do something would end the discussion on whether or not to do it. “Can my troops stay with you?” No. Third Amendment. “Oh, damn, I always forget that one. Guess I’ll go on Hotels.com.”

Of course, these are not normal times. The Trump regime views the Constitution as something to be worked around, not something to live up to. Trump will probably order soldiers in his grand military parade to stay in Chuck Schumer’s house, and the feckless minority leader will assent as long as Trump promises him good seats at the next State of the Union.

Still, it’s jarring how breezily Trumpsters talk about abandoning American norms and principles. This week, Trump henchman Devin Nunes went on Hugh Hewitt’s radio show and just casually dropped that he was thinking about how to “ask” Chief Justice John Roberts to testify to Congress about the FISA courts. From the ABA Journal:

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 exchange is a microcosm of how the Trump administration has made a mockery of judicial independence.

  • Note that Hugh Hewitt had to tell Nunes that he couldn’t compel Roberts to testify. It’s the complicit conservative talking head, not the CHAIRMAN of the House Intelligence Committee, that has to point out that Congress can not SUBPOENA testimony from the goddamn Chief Justice of the United States.
  • Armed with that information, notice that Nunes doesn’t back off. INSTEAD he talks about the “correct” way to get around the separation of powers “issue,” as if it’s a mere technicality.
  • Just, like, FOR THE LULZ, Nunes helpfully points out that justices are regularly being lobbied in secret by Congress. What he calls “shoot the bull,” I’d call “troubling ex-parte communications which ruin the appearance of judicial impartiality and independence.” It’s not an ACCIDENT that Nunes’s mind free associated “illegal subpoenas” with “dinners with the justices.” IN HIS OWN MIND, it’s all part of a continuum for how Congress can influence the Supreme Court.

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The fact that Nunes wanted to talk to Roberts about his appointment of FISA judges is, sadly, irrelevant. The Chief Justice gets to appoint judges to the FISA courts, and I TOO would be interested in his process for doing that. Not that anybody asked my opinion, but if I were running a free and open society, I wouldn’t vest this kind of power in an unelected, unaccountable official who can wield it in secret.

If Congress doesn’t want Roberts to have that power, they can take it away from him. THAT’S HOW THIS IS SUPPOSED TO WORK.

What they can’t do is tug on Roberts’s robes and try to intimidate him into using his power the way that they want him to.

I almost wish Devin Nunes would straight-up subpoena John freaking Roberts. As Vincent Vega might say: it’d be worth him doing it just so Roberts could catch him doing it.

Nunes has considered asking Chief Justice Roberts to testify in FISA warrant controversy [ABA Journal]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.