Will the real Mike Zullo please stand up?
By noon Thursday, Zullo had invoked his Fifth Amendment privilege against self-incrimination nearly 220 times under questioning from plaintiffs' counsel Stanley Young. It was day 19 of Sheriff Joe Arpaio's exhaustive contempt trial.
Through much of it, Zullo looked perturbed as Young probed the sheriff's Cold Case Posse commander on e-mail strings, text messages, and even audio recordings that Zullo had created during the MCSO's year-plus-long Seattle investigation, first exposed by New Times in June 2014
After lunch, before Zullo's testimony continued, reporters joked about how long it would take for Zullo to get to 300 times taking the Fifth. After all, he'd taken the Fifth 40 times in 15 minutes on Tuesday, right before the court broke for the Veterans Day holiday.
At his November 9 deposition in the case, Zullo had taken the Fifth almost 350 times in a four-hour session, a Ripley's Believe It or Not
kind of number.
Such prodigious use of the Fifth Amendment earned him the nickname "Take Five Mike" from one wag.
In any case, Zullo's afternoon testimony
began, and he took the Fifth a few more times under Young's questioning. Then, Arpaio's attorney, John Masterson, got a crack at Zullo, and, interestingly, Zullo began answering Masterson's questions.
Masterson asked Zullo why he had been taking the Fifth, and Zullo told him it was because he hadn't been given enough time to find "adequate counsel."
Also, Zullo pointed the finger, as he has in the recent past, to a footnote in one pleading by the plaintiffs, listing possible federal crimes that may have been committed by "MCSO personnel" during the course of the investigation.
Zullo refuted these "hellacious, hellacious accusations," insisting that this "was never our intention."
"Did you want to find any damaging info on Snow?" wondered Masterson.
"Hell, no," replied Zullo.
Masterson ended his brief cross-examination, and Young was given time to ask questions on redirect, as is common.
Zullo continued to respond, getting louder and more animated with each gentle query by Young. Zullo insisted that Snow had been just one of more than 150,000 Maricopa County residents identified by Montgomery as having had their personal data illegally "harvested" by the CIA.
"Sir, you were a victim," Zullo said, turning to Judge Snow, then back at Young. "I never did anything to hurt this man."
The posse man attempted to explain why he and the MCSO's case agent, Brian Mackiewicz, ended up in Montgomery's house in tony Bellevue, Washington, in 2013, with the confidential informant's running Snow's name in his database — a database he supposedly had acquired while working as a subcontractor for the CIA.
But Zullo seemed to be digging himself deeper.
"We were looking for high-profile people in Maricopa County," Zullo explained.
You know, like a federal judge. That's when Zullo had a bright idea.
"`Who is the federal judge in this Melendres
thing?'" Zullo recalled asking.
Montgomery did an Internet search, and eventually came up with the name of G. Murray Snow, which he entered into his super-secret database.
Four minutes later, according to Zullo, Snow's name popped up, as did his address and indicators that Snow's banking and IRS records had been harvested by the CIA. Zullo says he went to Arpaio, and a plan was developed.
"The plan going forward was to [get Montgomery] to give us information on this judge," Zullo explained, then investigators would approach Snow and get him to verify it. But this never happened.
"We weren't doing anything on Judge Snow," Zullo said. "This was always going to the FBI . . . We needed Montgomery to go to the FBI . . . in a cooperative manner."
So Zullo played along with Montgomery, who was suspicious of the FBI because Montgomery's house had been raided by agents previously. Zullo said this is one reason they took Zullo to federal Judge Royce Lamberth in D.C., seeking guidance on Montgomery's claims, a meeting that was set up by Montgomery's lawyer, Larry Klayman.
"This was a brain-damaged dance I did with this guy," Zullo said of Montgomery.
Zullo accused Young of trying to paint him as the bad guy, taking various e-mails he had written out of context.
"What is this, a star chamber?" he blurted out. "Don't my rights matter?"
If Zullo's non-Fifth-taking testimony could be seen, initially, as helpful to Arpaio, at least when Masterson was cross-examining Zullo, it didn't remain that way.
"I didn't know any federal judges," Zullo said of why they asked about Snow's name and not that of some other federal judge in Maricopa County. "It wasn't that we targeted Judge Snow to 'target' Judge Snow."
Young then began to bring up various exhibits, asking Zullo to verify them, then entering them into evidence, one after another. Zullo seemed suddenly aware of what was going on and announced that he was answering too many questions.
"I don't know what I'm doing," he said, seeking guidance from Snow.
The judge said he could not give him legal advice. But he tried, patiently, to explain what was going on to Zullo. Essentially, Zullo had opened the door to further questions from the plaintiffs.
Snow told Zullo: "You cannot invoke the Fifth and not invoke the Fifth" without consequences.
"You have to be consistent in your invocation" or, in volunteering answers, you give the plaintiffs opportunity to inquire even more.
There was a discussion among the attorneys, then Snow called an afternoon break to study the issue.
When he returned, he told Zullo that he could invoke "on a question-by-question basis" but that this may involve a "waiver" of his Fifth Amendment privilege to a greater or lesser degree.
He told Zullo this may mean him having to return the next day.
"I was almost out, sir," Zullo laughed.
But Zullo did not invoke the Fifth for the remainder of the day, instead answering all of Young's questions.
After his testimony, Zullo seemed relieved. Outside the courthouse, when reporters asked him why he did a 180 from the morning, he said he was bothered buy the insinuation that he and others involved in the Seattle investigation had sought to investigate Judge Snow.
"I would never do that," Zullo explained. "If you're asking me what the motivation was, it could have been that accusation leveled by Mr. Young that somehow we used [Montgomery's] database. We never used his database."
A statement that seems contradicted by his own testimony.
On Tuesday, when Zullo was asked about his taking the Fifth, he responded, in part, that reporters should "wait till Thursday."
When that was brought up again Thursday, he admitted that he could have been thinking about doing it then. That is, dropping the invocation of the Fifth and just answering questions.
But Zullo's statement on Tuesday has led to speculation online: Could Zullo's about-face on Thursday have been part of a plan by the defense and Zullo to enter exculpatory testimony into the record, or at least to offer a version of events to the public that countered that of the plaintiffs?
This theory might work with some of Zullo's testimony, but not all of it.
In the morning, Zullo was confronted time and again with damning communications between him and the MCSO's confidential informant, supposed computer guru Montgomery.
In one recorded phone call from April 2014, Montgomery told Zullo of instructions from Sergeant Travis Anglin, one of two MCSO detectives on the case with Zullo, to "slow play" his work for Sheriff Arpaio.
"Why would they tell you to slow down?" Zullo asked Montgomery.
"It was because at that time, I was doing Snow stuff," Montgomery replied, referring to information he supposedly had been digging up on the judge.
"Son of a bitch!" Zullo responded.
Later in the same recording, he told Montgomery, "I'll talk to Joe on Wednesday when I get out there."
Incriminating on its face. But in the morning, Young was having to work to get any of this into evidence, because Zullo took the Fifth on everything — and because Masterson had a standing objection to the information's admission that Snow said he would have to rule on later.
Other passages from e-mail correspondence between Montgomery and Zullo were just as bad.
Like when Montgomery wrote to Zullo after a falling out, telling him in one e-mail to "go back to spying on Judge Snow and the monitor."
Or when Mackiewicz, Zullo, and Montgomery discussed running different names in Montgomery's massive database of personal information, supposedly including Social Security numbers, passwords, and banking info.
At one point in a recording of the conversation, Zullo asked Montgomery, "How would you destroy someone with this information?"
A voice later identified as Montgomery's suggested that he could accuse someone of being a pedophile and then "upload pedophile pictures into their" e-mails.
And if someone's bank account was known, an IRS complaint could be set up.
Young played a long passage from an audio recording of an October 2013 meeting at MCSO headquarters with Zullo, Mackiewicz, Arpaio, and then-timber billionaire Tim Blixseth present.
In a weird, rambling explanation, Blixseth recounted Montgomery's history for Arpaio, and Montgomery's business partnership with Blixseth's ex-wife, Edra.
During Blixseth's divorce from his ex, Montgomery switched sides, telling Blixseth that he wanted to make amends because, Montgomery supposedly told him, he had just had a stroke.
Blixseth said Montgomery told him that not only had the mysterious computer whiz hacked into information pertaining to Blixseth, but that Montgomery was a kind of Edward Snowden, the famed whistleblower who exposed the federal government's massive program of harvesting data from millions of Americans.
Montgomery told Blixseth of his own work for the CIA, saying to the billionaire he had helped develop a secret computer system called the Hammer, which was first used on Al Qaeda but later used to target U.S. citizens.
"I hacked into all of America for [CIA Director John] Brennan and [Director of National Intelligence James] Clapper," Blixseth said Montgomery told him, later adding, "Snowden is a punk. He doesn't have any info like I have."
Blixseth, now an ex-billionaire and in federal custody on contempt charges in a bankruptcy case, said he believed Brennan, before working for the Obama administration, had gained access to Obama's birth certificate and modified it somehow.
Apparently, Montgomery allegedly had access to this information because Montgomery, at one point, hacked into Brennan's and U.S. Attorney General Eric Holder's e-mails.
At first, the Hammer was used on Al Qaeda targets, "Mohammad this, Abdullah that," Blixseth said.
But later, it allegedly was used to harvest information from Citigroup, Sprint, Verizon, and AT&T. Montgomery told Blixseth that he was ordered to tamper with Florida's election file, uploading new info to it to replace information he took from it.
Disillusioned, according to Blixseth, Montgomery squirreled away some of the data he had taken from Americans on the CIA's behalf.
Blixseth tried to get Montgomery whistleblower status, but Montgomery was rejected by 18 different agencies, Blixseth said. Which is why Blixseth was seeking Arpaio's help against the Justice Department, Eric Holder, and Holder's lieutenant, Assistant U.S. Attorney Lanny Breuer.
All of whose names later would make appearances in Montgomery's timelines and flow charts outlining a conspiracy against Arpaio.
Montgomery needed immunity, said Blixseth, otherwise he and Montgomery could be charged with federal crimes for swiping classified information from the federal government.
Would anyone in Arizona give Montgomery immunity, particularly if there were 150,000 victims in Maricopa County?
"We're experts at all this shit," Arpaio's voice can be heard saying, but he doubts he can find a prosecutor in Arizona with the "balls" to take the case.
Blixseth said he had "big-time lawyers" advising him that if Montgomery could get immunity, he and Montgomery could not be prosecuted because of the legal doctrine called "the fruit of the poison tree."
Otherwise, said Blixseth, the feds "are going to say we stole this info."
Arpaio at one point joked: Didn't Blixseth have an extra $20,000 so they could have a lawyer look into all this and make sure none of them got in trouble?
The sheriff agreed to get involved but said he wanted to "keep this very quiet," otherwise, he cracked, someone "may end up with a bullet in his brain."
It's important to note that both Arpaio and Sheridan have agreed that what they got from Montgomery was "junk."
Also, NSA analysts hired by the MCSO said the information in Montgomery's database was worthless — and that Montgomery was "a complete and total fraud."
In one of the other audiotapes from Zullo played by Young is a phone conversation between Montgomery and Zullo.
Montgomery alleges that Arpaio's investigators had him redo receipts for his payments from the MCSO as a confidential informant. According to Montgomery, they wanted to hide $7,000 that he had been given by the MCSO
"[An MCSO detective] left off a bag of money; I think it was seven grand," Montgomery told Zullo in the recording.
"Sheridan said to go do it," Montgomery was told. "But the [MCSO] can't be involved in it."
Thursday afternoon, after deciding to answer questions, Zullo told Young that Montgomery wanted to use a supercomputer at Lockheed in Los Angeles that would allow him to do his work with his massive database faster.
The "bag of money" was meant to help Montgomery gain "access" to this supercomputer, according to Zullo. The full meaning of this detail remains unknown.
Such revelations and their legal implications suggest that Zullo's testimony, both before and after his 180, was not helpful to Arpaio in any way.
Zullo only opened up himself, and possibly Arpaio and Sheridan, to further questions.
The posse commander is back on the stand this morning, and the plaintiffs have mentioned possibly recalling Arpaio.
At the end of the day Thursday, Masterson, who had suggested previously that the defense would recall Sheridan, said it would have no more witnesses. Sheridan was present in court despite back woes.
Smart move, considering Zullo's implosion on the stand.
Maricopa County's attorney, Richard Walker, said the county was re-thinking putting anyone on the stand, as was contemplated at one point.
Snow suggested that oral arguments in the civil contempt case would take place on November 20 and that he would then make findings of fact and determine remedies for the civil portion.
As for a possible referral of criminal contempt charges, that would come later, after he gives defendants' criminal attorneys a chance to weigh in.
For live Tweets during breaks in the contempt hearings, follow @StephenLemons or search #ArpaioContempt on Twitter.