Questions Over Posse Member’s Documents Latest Twist In Sheriff’s Contempt Hearing

By Jude Joffe-Block
Published: Friday, November 6, 2015 - 5:05am
Updated: Friday, November 6, 2015 - 8:26pm
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Mike Zullo

UPDATE: On Friday afternoon, U.S. District Court Judge Murray Snow declined posse member Mike Zullo's request for a protective order over his oustanding documents. Snow said he is ordering the sheriff's attorneys to turn over the  documents.

Zullo could choose to issue an emergency appeal over the decision. He is expected to be deposed by the plaintiffs' lawyers on Monday and will likely be called to testify in the coming week.

The federal judge overseeing the contempt of court case against Maricopa County Sheriff Joe Arpaio is expected to rule Friday afternoon on whether one of the sheriff’s volunteer posse members must hand over certain documents.

The documents have to do with a mysterious sheriff’s investigation that used a now-discredited confidential informant in Seattle.

While the sheriff and his chief deputy have testified the so-called Seattle investigation was looking into CIA overreach and bank fraud targeting Maricopa County residents, there is additional evidence suggesting the confidential informant may have also looked into the judge overseeing the case.

Arpaio and four of his staff are in the midst of a contempt of court hearing for violating U.S. District Court Judge Murray Snow’s orders in a racial profiling case.

One of the facets in the case is whether the sheriff — at the time he was supposed to be focused on implementing court ordered reforms to prevent profiling Latino drivers — was using resources to hire a confidential informant in Seattle to try to dig up dirt on Snow.

And that’s where Mike Zullo, the head of the Maricopa County Sheriff's Office Cold Case Posse, fits into this story.

“Mr. Zullo was the person the sheriff primarily relied on for the so-called Seattle Investigation, which as it turns out was primarily based on bogus information,” said Dan Pochoda, a lawyer with the ACLU of Arizona, which represents the plaintiffs in this case.

As a posse member Zullo is a volunteer, not a sworn officer. He declined to be interviewed for this story. But he has made many media appearances over the years as the lead investigator in Arpaio’s controversial investigation into President Barack Obama’s birth certificate.

In a video by the website in which Zullo calls the president’s birth certificate fraudulent, he also explains his own role.

“I moved to Arizona in 1993, joined the sheriff’s posse in 2005,” Zullo said in the video. He is shown wearing a thick mustache and a suit and tie. “In 2006 the sheriff asked me to head up a newly formed Cold Case Posse specifically used for his purpose that answered directly to him.”

Zullo also answered directly to Arpaio when it came to the Seattle Investigation.

The Seattle Investigation began in late 2013 after the sheriff met Dennis Montgomery, a self-proclaimed CIA and National Security Agency whistleblower who was living in Seattle at the time.

The sheriff and his chief deputy testified they hired Montgomery as a confidential informant because Montgomery claimed he had evidence of CIA overreach, hacking into Maricopa County residents’ bank accounts, and wiretaps of the sheriff’s phones.

But documents made public so far also show Montgomery had other probes.

“[The Seattle Investigation] was clearly, amongst other things, looking into aspects of Judge Snow, the presiding justice in this case,” Pochoda said. “It’s obviously very unusual and very troubling, when you have a party in the case investigating the judge. Particularly the party here, the MCSO that has a history of bringing charges against judges in Maricopa County they disagreed with.”

Montgomery made flowcharts and timelines that seemingly allege Snow was involved in a purported anti-Arpaio conspiracy with the U.S. Department of Justice and the law firm of Covington & Burling, which represents the plaintiffs in the case.

Arpaio has testified he never asked Montgomery to investigate Snow and has said he doesn’t believe the flowcharts constitute an investigation. He’s also testified that Montgomery’s information was junk.

According to court documents, the sheriff’s office ultimately hired two individuals with NSA experience to evaluate Montgomery’s materials, and they concluded that Montgomery was a “complete and total fraud.” 

Before the sheriff’s office even started working with Montgomery, high profile news articles had accused Montgomery of being a conman and selling bogus counterterrorism software to the George W. Bush administration.

Nevertheless, the sheriff’s office paid for Mike Zullo, a detective and a sergeant to spend time in Seattle working with Montgomery. The sheriff’s office spent a quarter of a million dollars on the Seattle investigation, according to the chief deputy’s testimony. At one point the sheriff’s office improperly tried to divert federal drug interdiction funds to the investigation.

Zullo is thought to be a key piece of the puzzle regarding the Seattle Investigation.

According to court testimony, Zullo was the person in Seattle who was in touch with Arpaio the most about the investigation.

But since Oct. 20, Zullo has refused to turn over certain documents to the plaintiffs in the case relating to the Seattle Investigation. The conflict has derailed the schedule in the contempt of court case against the sheriff.

At a recent deposition, Zullo refused to answer questions because he did not have a lawyer.

Lawyers for the sheriff from the Jones Skelton & Hochuli law firm took Zullo’s documents into their possession and have already turned over many of them, but withheld more than 80. They said Zullo was invoking his Fifth Amendment rights to not incriminate himself, as well as his due process rights and rights against unreasonable search and seizure.

But Pochoda’s team wants to see all the documents.

“Mr. Zullo is clearly a relevant witness, and any documents prepared by a witness that are relevant to a witnesses’ testimony are always turned over,” Pochoda said. “These documents clearly are relevant, they have presumably been withheld by the Jones Skelton attorneys because they feel they may not look favorably on the activities of either the sheriff, who is their client, or Mr. Zullo.”

Snow will decide Friday afternoon if the Jones Skelton & Hochuli attorneys must turn over the remaining documents after hearing from all the parties.  

Zullo has argued that he gave the documents to the Jones Skelton & Hochuli attorneys under “false pretenses” since he was under the impression they were representing him, too, when they are not.

Zullo has tried to get Maricopa County to pay for a lawyer to represent him, but the county has so far not complied.

As for why Zullo may be worried about incriminating himself, and is invoking his Fifth Amendment Rights?

“You don’t have to go back very far in history to see that people have been prosecuted for careless, reckless or intentional misuse of classified information,” said Paul Charlton, the former U.S. Attorney for Arizona.

For example, former CIA Director Gen. David Petraeus was convicted of improperly sharing classified information with his biographer.

There could be legal implications for Zullo and others in the sheriff’s team since Montgomery claimed to be harvesting CIA and NSA records for the sheriff’s office.

“So the fact that a sheriff’s office might have at one time believed they were gaining access to what was purported to be classified data raises all sorts of concerns, including potential criminal violations,” Charlton said.

It may not matter that Montgomery’s records likely weren’t actually from the CIA or NSA after all. For example, people are caught in drug stings can be prosecuted even if the drugs they attempted to buy were fake.

“Many undercover cops sell powder to drug dealers and then later charge them with conspiracy,” Charlton said.

Still Charlton said some details that have come to light that could protect the sheriff’s office from criminal liability. For example, they brought Montgomery to meet with a Foreign Intelligence Surveillance Act judge in Washington, D.C., about his whistleblowing claims against the CIA and NSA, and arranged a meeting with him and the Arizona Attorney General’s Office.

As for Montgomery, the Department of Justice is looking into his hard drives, a clue they may be concerned about the records he purported to take from the CIA and NSA. The results of that review are still unknown.

While Arpaio and his chief deputy have taken steps to say in court testimony they no longer trust Montgomery, email exchanges suggest that as of May 2015, Zullo still had faith in Montgomery, and may still today.

In an email made public in court filings, Montgomery wrote to Zullo on May 22 about the sheriff’s motion to get Snow to recuse himself from the case.

In that email exchange, Zullo wrote that he had decided not to call Montgomery’s information “junk” as the sheriff and the chief deputy had in their testimony.

“Dennis I want you to know that I do believe what you have to say and if I ever have to testify that is exactly what I’m going to say,” Zullo wrote.

In Zullo’s filing to the court on Nov. 2, he seemed to echo part of Montgomery's alleged conspiracy theory involving the Snow, the Department of Justice and the plaintiffs’ law firm, Covington & Burling.

“It is also of note that other partners of Covington & Burling are the former attorney general of the Obama Justice Department, and Lanny Breuer, who was head of the Obama Justice Department’s criminal section," Zullo wrote. "All of whom were referenced in information provided to MCSO, by Mr. Montgomery during the 'Seattle Investigation.'"

In the same motion, Zullo accused Snow of bias, and brought up allegations that Snow’s wife had once said her husband was trying to get Arpaio out of office.

“Zullo fears the court’s orders not only show an implicit bias against Zullo, given his association with Defendant Sheriff Joe Arpaio in particular, who the court, as reported in the media, revealed by his wife to destroy, and still an outstanding issue which he himself has yet to confirm or even deny, nor has this court pursued with the same zeal as the inquire into the ‘Seattle Operation’...” Zullo wrote.

The plaintiffs have scheduled a second deposition date with Zullo for Nov. 9.

Updated 8:23 p.m.