A man who is a potential witness in the ongoing fight over the National Security Agency’s spy-on-Americans programs is asking to intervene in the federal case claiming contempt on the part of Maricopa, Arizona, County Sheriff Joe Arpaio.
And the motion also seeks to have the judge in that case removed.
The situation developed recently when, as part of the hearings involving Arpaio, he said his lawyer, Tim Casey, reportedly had hired someone to investigate Judge G. Murray Snow’s wife after she apparently told witnesses her husband didn’t want to see the sheriff re-elected.
Arpaio was ordered earlier by the judge to stop racially motivated immigration patrols throughout Phoenix, and the judge was holding a hearing on his compliance.
Klayman has asked a federal judge in Washington to interview in secret Dennis Montgomery, who reportedly can testify “about the unconstitutional and illegal surveillance conducted by the National Security Agency and the Central Intelligence Agency that is highly relevant and of crucial important … as he worked closely with these agencies following the tragedy of Sept. 11, 2001.”
It’s the Dennis Montgomery who was alleged in a book by New York Times reporter James Risen, “Pay Any Price: Greed, Power, and Endless War,” to be a fraud and who has sued Risen for defamation over the charge.
Court filings explain Montgomery worked with top-level government agencies and individuals, knows a great deal about the spying programs and even has tried to blow the whistle, prompting federal bureaucrats and agencies to try to discredit him.
The case by Montgomery against Risen alleges that someone at the highest level leaked information to Risen about what Montgomery did while working with the CIA and NSA, providing ammunition for the attacks.
The private interview – judge and witness only – is requested because, Klayman explains in the court filing with the U.S. District Court in Washington, Montgomery had access to highly classified material. Klayman further notes that while the judge is authorized to hear classified material, the attorneys involved do not necessarily have that clearance.
Klayman said in a court filing in that case that Montgomery can talk about how “the records of judicial, congressional, and executive government officials” were “harvested.”
Now Klayman has filed documents in the separate Arpaio case asking to be allowed to intervene – and to have Snow disqualified.
Klayman said in a statement about the issue that the motion cites “ethics violations and extra-judicial bias and prejudice.”
“As set forth in the pleadings, Judge Snow has unethically turned the case into a personal vindictive ‘witch-hunt’ over his wife’s statements quoting the judge and intending to harm Sheriff Joe Arpaio’s chances for re-election in 2016 as sheriff of Maricopa County through the contempt proceedings which Judge Snow has been holding,” he wrote.
Klayman’s statement explained, “The pleadings explain the basis for the disqualification and are supported by the sworn declaration of renowned ethics professor and expert Ronald Rotunda. Caught in the judge’s ‘crossfire’ of his ‘contempt’ for Sheriff Joe Arpaio is whistleblower Dennis Montgomery, whose due process, attorney/client privileges, work product and intellectual property rights have been violated.”
Klayman’s filing explains at length:
“As explained by Professor [Ronald] Rotunda, Judge Snow now has – by his own admission – an incurable personal interest in the case, at least in this new phase of this case as it has metastasized into something entirely new. At this stage, Judge Snow is the sole decision-maker in the case. By his own official inquiry, statements, and questions in open court, on the transcript, Judge Snow admits that the investigation now concerns – as least as the judge believes – the judge’s wife. As proclaimed by Judge Snow himself, Judge Snow is now unethically investigating issues about his own family.”
He continued, “This began when reports were published that Judge Snow’s wife stated to several witnesses at a restaurant that her husband, Judge Snow, wanted to do everything possible in his conduct of this case to make sure Arpaio is not re-elected as sheriff in the upcoming elections. Apparently neither Judge Snow nor his wife have denied nor sought to explain his wife’s public statement as far as intervenor or counsel are able to determine. Instead, Judge Snow is determined to investigate and threaten Dennis Montgomery and others have confirmed that Judge Snow’s wife did make the statement at issue.”
Montgomery is involved because he “provided his software work, analysis, technological work, copyrighted material, patents, programs, source code, output data and information to the [sheriff’s office],” and that material now is being targeted by Snow, the filing said.
At one point, according to the document, Snow cited “an unreliable and dishonest rag, The Phoenix New Times,” stating that Montgomery was investigating Snow.
Arpaio responded, “It’s not true.”
The filing reveals pages of grilling by the judge on the various issues.
It states, “Nowhere does it appear that either Judge Snow or his wife have ever denied that his wife made those comments about Judge Snow’s intention to conduct this case in a manner to ensure Sheriff Arpaio’s defeat in the upcoming election… or that she was misreported or misunderstood. ”
The filing said other witnesses have confirmed the judge’s wife made the statement.
Wrote Klayman, “disqualification or recusal is required when there is even the appearance that the court’s impartiality may be called into question.”
The filing continues, “Sheriff Arpaio testified that Dennis Montgomery had nothing to do with any investigation of Judge Snow or his wife. Yet when the court resumed … at page 657-660 of the transcript, Judge Snow immediately started up again with further inquiries about Dennis Montgomery’s alleged funding and records. Judge Snow’s orders after the lunch recess indicated a determination to undertake a major examination concerning Dennis Montgomery.”
An attached declaration from Rotunda, the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School of Law, said, “It appears that the judge is getting most of his ‘information’ from articles of the Phoenix New Times.”
He explained that according to the transcript, Snow was “cross-examining the witness” and was asking “various leading questions.”
“The judge apparently engaged in his own investigation of facts outside the courtroom he thought relevant that were not in evidence … The judge said, ‘I was told [during the luncheon break] that you also have various sources of funding within the MSCO,’ and Sheriff Arpaio responded that the judge’s information was false. The judge did not say who told him this false information, nor does he say if he questioned others as well.”
The analysis notes that the judge even interrupted a witness, “preventing him from finishing his sentence.”
And then he became even “more argumentative,” the analysis reveals.
“I am told that Judge Snow is now ordering that documents showing communications with or referring to Larry Klayman, the lawyer for Mr. Montgomery, be turned over to him, including documents covered at least by the Attorney Work Product Privilege.”
He said pertinent facts were that Klayman and Montgomery “are not parties to this case” and no subpoenas have been issued.
He concluded, “We know that several people report that the judge’s wife said that her husband, Judge Snow, ‘Judge Snow wanted to do everything to make sure [that Sheriff Arpaio is] not reelected.’ It should be quite obvious that whatever the duties of a federal judge are, that job description does not include conducting a judicial proceeding in a way to ensure that Sheriff Arpaio is not elected and to pursue an investigation that is even broader than that for what appears to be personal reasons.”
A statement from Montgomery was included that asked the court to strike “the scandalous and false smears against me …. and to end this unethical, improper and irrelevant inquiry of Judge Snow.”