Judge Expected To Address Informant's Motion To Intervene In Sheriff Arpaio's Contempt Case

By Jude Joffe-Block
Published: Wednesday, May 13, 2015 - 8:48pm
Updated: Thursday, May 14, 2015 - 8:54am
Audio icon Download mp3 (5.06 MB)

The contempt of court case against Maricopa County Sheriff Joe Arpaio has taken a strange turn ever since it was revealed the sheriff’s office hired a computer consultant to do an unorthodox investigation that may have involved stolen CIA data.

The judge will be deciding whether the computer consultant, Dennis Montgomery, can intervene in the case

Montgomery calls himself a Central Intelligence Agency and the National Security Agency whistleblower.

He’s reportedly been a contractor on counterterrorism projects for federal agencies, including the CIA. He has also volunteered to testify in a lawsuit challenging the NSA’s collection of domestic phone records.

According to testimony from MCSO Chief Deputy Jerry Sheridan, the Sheriff’s Office hired Montgomery as a paid informant to use data he’d allegedly taken from the CIA to expose the CIA was hacking into bank accounts of Maricopa County residents.

The chief deputy also admitted Montgomery wasn’t always a reliable source.

In fact, beginning in 2009, a number of high-profile media reports have alleged Montgomery sold bogus software to the federal government. Montgomery denies the allegations and has even sued one reporter for libel.

But Montgomery’s work for the Sheriff’s Office raises some serious legal issues, said William Banks, the director of the Institute for National Security and Counterterrorism at Syracuse University

“Unless the Sheriff’s Office was engaged in a law enforcement operation for which that information was part or relevant, it is unlawful for a public official to receive or possess classified information,” Banks said. “Just as it is unlawful for the so-called consultant, Mr Montgomery, to have in his possession classified information, much less to have taken it himself.”

U.S. District Court Judge Murray Snow, who is presiding over the contempt of court case against Arpaio, asked the sheriff to turn over all documents from the investigation Montgomery worked on.

Then last week, the sheriff’s lawyer revealed Montgomery had given the sheriff a massive data dump of hundreds of thousands of names, social security numbers and banking records.

Snow then ordered the sheriff’s lawyer to inform the CIA’s chief counsel about the data dump, in case the data actually came from the agency.

But Banks said he doesn’t believe the data came from the CIA. He said the CIA doesn’t do domestic surveillance, unless it is pursuing foreign intelligence.

“It is unlikely the CIA is involved in this matter in any way,” Banks said. “It is likely that Montgomery is either blowing smoke or those who hired him are blowing smoke to divert attention from other things that are going on.” 

Banks said even if the data is not classified, there could be other legal issues with the data dump, since there are other laws protecting sensitive consumer data.

It’s still a mystery what exactly Montgomery was doing for the Sheriff’s Office and where his data came from.

But a few new details are starting to come to light. For example, on the stand, Sheridan said the Sheriff’s Office had informed the Arizona Attorney General’s Office about its work with Montgomery.

That meeting was recently confirmed by the current Attorney General’s Office.

“What we know is that a meeting between staffers, or staff from the Attorney General’s Office, the Sheriff’s Office and Dennis Montgomery took place on Dec. 11, 2013,” said Ryan Anderson, director of communications division for the Attorney General’s Office.

Former Attorney General Tom Horne was in office then.

Anderson said the details of what exactly happened in the meeting is a mystery to the Mark Brnovich administration, which took over in January. But Anderson confirmed there was a “free talk letter” with Montgomery signed on that same day of the meeting.

A free talk letter allows an informant — in this case Montgomery — to talk with a prosecutor about a certain topic with some degree of immunity. The Attorney General’s Office has declined to release the letter.

Meanwhile, Montgomery himself is trying to intervene in the contempt case against the sheriff.

In a motion filed on May 7, Montgomery asked to intervene to “demand a return of his documents, records, work product and proprietary interests; to move to strike false information about him from the record, which is also irrelevant to the proceedings, to disqualify the Honorable Murray Snow and file a demand for the immediate transfer of the case to a different judge … and move for a halt to the inquiry.”

Larry Klayman of the organization Freedom Watch is representing Montgomery.

Klayman is also behind a separate lawsuit in federal district court in Washington, D.C., challenging an NSA program that collects records on domestic phone calls. U.S. District Court Judge Richard Leon sided with Klayman in a 2013 ruling, but has stayed his preliminary injunction against the federal government while the government appeals.

Klayman recently petitioned Leon to lift his stay and block the federal data collection program. He asked the judge to allow Montgomery to give testimony as an expert witness behind closed doors.

“Montgomery is a witness as significant as whistleblower Edward Snowden,” reads a motion in that case, referring to the former NSA contractor who leaked classified NSA records to journalists. “Unlike Snowden, Montgomery has not fled the country, is available as a witness, and is willing to present himself.”

In that filing dated March 20, Klayman said Montgomery was in poor health after suffering a brain aneurism and strokes last May, and needed to testify as soon as possible.

Earlier this week, Klayman updated his petition to Leon. He pointed out that the 2nd U.S. Circuit Court of Appeals recently ruled in a separate lawsuit brought by the American Civil Liberties Union and found the NSA’s program was illegal. He also argued developments in the contempt of court case against Arpaio have made it all the more urgent for Montgomery to testify as soon as possible in front of Leon. Klayman alerted Leon that the CIA had been contacted about Montgomery’s data as a result of the contempt proceedings.

“Thus, the CIA may soon be inclined to confiscate these alleged documents and things in order to prevent the appropriate and legal release of this information by Mr. Montgomery to this Court, Congress, and other authorities, in an attempt to cover up the defendants’ illegal actions,” Klayman wrote.

Meanwhile, in Phoenix, Klayman and an associate are arguing Snow is ethically compromised and should recuse himself from the contempt case against the sheriff.

It came out in the April contempt proceedings that a woman named Karen Grissom notified the Sheriff’s Office that she had heard the judge’s wife say at a restaurant that Snow disliked the sheriff and didn’t want him in office.

Under questioning from Snow in April, Arpaio revealed his lawyer had hired a private investigator to talk with Grissom. Snow has asked for documents from that investigation.

“The judge injected his own personal issues into the case,” Klayman said in an interview with KJZZ. “He had no right to do that, that is unethical under the judicial code and it creates a conflict of interest.”

Arpaio’s own attorneys have not argued in court that Snow should be disqualified from this case. In fact, Arpaio’s criminal defense attorney, Mel McDonald, told reporters in April that he disagreed with the idea that Snow should recuse himself.

A status conference is scheduled on Thursday morning in Snow’s courtroom. Snow is expected to address Montgomery’s motion to intervene in the contempt of court case against the sheriff.

Snow has said there’s a potential conflict with the motion, though, since Klayman is representing Montgomery but also represents Arpaio in a separate lawsuit challenging the Obama administration’s executive action on immigration.

But Klayman denied there is a conflict.

“I would never do anything that is contrary to Sheriff Arpaio,” Klayman said. “He is my friend and in my client in that other case.”

Klayman declined to say whether he had notified Arpaio before he took steps to intervene in this contempt of court case on Montgomery’s behalf, citing attorney-client privilege. Lawyers for the sheriff did not respond to a request to comment.

Though Montgomery’s court filings have alleged that misinformation about him has been shared in court, Klayman declined to elaborate.

“We are not in any way discussing what Mr. Montgomery did or did not do,” Klayman said.

This week Klayman filed an emergency petition to the 9th U.S. Circuit Court of Appeals to remove Snow from the case before the scheduled Thursday status conference in Snow’s courtroom.

A three judge panel of the appeals court denied Klayman’s petition on Tuesday afternoon, which means the matter goes back to Snow.

The appeals court made clear that it did not want to hear anything else on the matter.

“No further filings will be entertained in this closed case,” the order said.

EDITOR’S NOTE: This story has been updated to include additional information about Klayman’s lawsuit challenging NSA surveillance and Montgomery’s role as a witness in that case.

Updated May 14, 2015, at 8:25 a.m.