There seems to me an easy solution to the problem of separation of powers alluded to by the judge. Both Nunes and Grassley could provide the court with a copy of the FISA 702 submission they have been given by the Justice Department and Judge Collyer could advise both the House and Senate Judiciary Committee if there are any material differences between the original filing and the copy provided by Justice.
It seems to me that if Congress would take the first step by sharing their information with the judicial branch .... then it would be difficult for the judicial branch to maintain they were setting any precedent by sharing their findings on the matter with Congress.
Any legal beagles around here?
To add to my above comments, it seems to me that since the Constitution establishes a tricameral government, expressly for the purpose of providing checks and balances, the Court could satisfy its duty to that end either by providing information through direct testimony upon request by Congress or by compliance with a subpoena issued by Congress.
While some constitutional Scholars maintain that Congress does not have the authority to subpoena members of the judicial branch, here is the law as it relates to the matter;
“According to Article 3, Congress has the plenary authority to cause every Federal court in the country with the exception of the Supreme Court to cease to exist. Further, as declared in Article 3, with the exception of a narrow class of cases, Federal courts would have no jurisdiction to hear most cases absent express authorization from Congress.”
In other words, lower courts serve at the pleasure of, or privilege provided by, Congress. Since only the Supreme Court is expressly removed from Congressional oversight, it seems members of the FISA court would have no choice but to comply.
The judge is clearly pointing to the DOJ and telling Nunes to subpoena the documents from them.
We already know that Rosenstein will produce documents under the threat of being held in contempt. Seems like an easy solution.
I'm not one.
There is no need to share
The congress can force “provide” order to the court
The idea of Congress giving Judge Collyer the FISA application they have to compare with the one DOJ/FBI presented to the FISA court is an intriguing idea; and one I’m sure Judge Collyer would be interested in. If she were to find out that the DOJ/FBI has different versions of the same FISA application there would be hell to pay.
And I have some basis for writing that. I don’t post here often, and even less frequently as to personal knowledge, but I worked closely (as a lawyer) for/with Judge Collyer for four years in one of her prior capacities - when she was the equivalent of a civil prosecutor. She was appointed to that position by Reagan. I have the utmost respect for her.