Commenter bob nailed this prediction. Dennis Montgomery is suing the ACLU, according to a press release from Montgomery’s attorney Larry Klayman. The case is filed in Miami federal court (Case No. 15-cv-22452). In the PR piece Klayman describes Dennis Montgomery as an “NSA whistleblower.” I’d be interested in knowing exactly what whistle he blew and when.
This case is fallout from the Melendres v. Arpaio contempt proceedings, where the ACLU is defending Plaintiffs. Dennis Montgomery became tangentially associated with the case when it was learned in testimony before Judge G. Murray Snow that Sheriff Arpaio had employed Montgomery in some scheme to investigate alleged CIA snooping into Maricopa County residents’ bank accounts, alleged emails between judges (including Snow) and the justice department, and alleged government wiretapping of the Sheriff’s Office. Montgomery claimed to have telecommunications data he collected on behalf of the CIA. Arpaio himself said that what Montgomery provided was “junk.”
If what Montgomery says about taking CIA data is true, then there are several crimes he could be charged with. Montgomery makes himself out to be a whistleblower in the mode of Edward Snowden. Others label him a fraud.
My inexpert analysis of the 55-page complaint boils it down to two actionable allegations:
- The ACLU used information provided to them by Dennis Montgomery under an attorney-client relationship in a way adverse to Montgomery. This point remains “speculative” in the complaint, with no specific information being cited. The attorneys that Montgomery consulted with are not the attorneys on the Melendres case in Arizona; it’s not even the same ACLU chapter, Montgomery is suing them anyway.
- Defamation. ACLU counsel Dan Pochoda said to a reporter, “This guy [Sheriff Arpaio’’] hired a person [Dennis Montgomery] previously found to be a con man.” (The bracketed material was added by Klayman.) The New York Times article does name Montgomery before including the Pochoda quote. Times reporter Fernanda Santos said, based on her own research:
“Mr. Montgomery[‘s] reputation, easily uncovered with a cursory search, includes ample allegations of deception. Federal officials came to believe that he had sold antiterrorism technology that proved to be a hoax.”
In order to withstand a motion to dismiss, a complaint must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” It seems to me that the “factual matter” is pretty thin in this instance. No cited evidence whatever indicates that there was any communication of privileged information between the ACLU in Washington or New York and the ACLU of Arizona. As for being a con man, many sources had published that determination previously.
Some have speculated on this blog that the suit is nothing more than a delaying tactic, an attempt to stay proceedings in the Melendres case while this latest nuisance is dealt with, particularly since Klayman represents Arpaio in another matter.
More:
- Read the complaint
- Make a tax-deductible gift to the ACLU Foundation
- Biography of ACLU defendant Michael German
- Understanding Fiduciary Duty – Florida Bar Journal
- ABA Rule 1.8 Duties to Current Clients
- ABA Rule 1.9 Duties to Former Clients
- Testimony of Michael German before the Senate Judiciary Committee
As I predicted: Montgomery (represented by Klayman) sues the ACLU.
Better watch out Doc, KKKman is on the rampage! You’ll be next! hehehe
Who could see that coming! ‘;)
Florida 68.086 Expenses; attorney fees and costs.—
(1) If the department initiates an action under this act or assumes control of an action brought by a person under this act, the department shall be awarded its reasonable attorney fees, expenses, and costs.
(2) If the department does not proceed with an action under this act and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorney fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
Well, at least he is, presumably, filing it in a jurisdiction he can still practice in. I can’t imagine this lasting long, when the ACLU points out to the judge that they have absolutely nothing to do with the contempt of court action brought by Judge Snow, and the investigation in to Arpaio’s contempt of court. I should think that the ACLU should have considerably better lawyers to deal with the doofus fly that is KKKlayman, maybe we’ll get to see sanctions this time for a frivolous suit brought intentionally.
Montgomery filed in Florida, and Klayman is licensed to practice in that state.
The ACLU represents the plaintiffs in the case in front of Judge Snow — the case with the contempt proceedings.
And one of Montgomery’s claims involves a statement to the New York Times made by an ACLU attorney about that litigation.
Much of Montgomery’s lawsuit is frivolous. But Montgomery’s claim (of professional malpractice) that the ACLU is using information he previously disclosed to them will likely survive until a summary judgment motion.
I arrived at that in an update to my article. My criticism of the Klayman complaint is that this point is not made with any specificity.
It would seem to the that the only information the ACLU has used that could have been learned from Mongtomery’s disclosures was that he was a con man. He cannot argue that he was being defamed by being called a con man, while at the same time arguing that the ACLU unfairly used the fact that he disclosed to them that he was a con man.
What bugs me most about the complaint is the words “acted in concert” that appear over and over. Basically he is saying that ACLU attorney Mr. German at their headquarters conspired with ACLU attorneys in the Melendres case, but nothing in the record or the complaint justifies that claim. If there was no collaboration, then that whole cause of action evaporates.
The defamation part falls apart because what the ACLU said is either true, or a reasonable belief.
There is a legal concept that knowledge sometimes can be imputed to have been communicated between attorneys. I see, however, a few problems.
1. The ACLU is organized at the state level; the ACLU of Arizona is legally distinct from the ACLU of New York. So it may be possible to impute what one ACLU of Arizona attorney knows to another ACLU of Arizona attorney. But unless Montgomery alleges that the ACLU of New York actually talked to the ACLU of Arizona, there’s no way to impute knowledge.
2. I don’t think Michael German is an ACLU attorney. There are Michael Germans licensed to practice law in New York and DC, but neither work for the ACLU. The ACLU did hire a Michael German, a former FBI agent (with a law degree), as a “senior policy counsel.” But there’s no indication that person is actually licensed to practice law. So Montomery may be alleging a professional relationship with someone who isn’t actually a lawyer.
Klayman named the ACLU Foundation as a party.
https://www.aclu.org/donating-american-civil-liberties-union-and-aclu-foundation-what-difference
Yes. And Klayman will be told that none of the individuals work for the foundation, and that the foundation committed none of the acts alleged.
Klayman is inventing legal relationships that don’t actually exist. But it may be enough to survive a motion to dismiss.
The point I am/was trying to make, is that unless I missed it, Montgomery was never brought up by the ACLU at all, since they are suing Arpaio for rights violations having nothing whatsoever to do with Montgomery. As near as I can recollect, Montgomery wasn’t even brought up until the contempt hearing and then only as the result of questions by the judge, and the ACLU isn’t a party at all to the contempt hearing, so I don’t see that there is any connection of even possible conflict between the two. The judge started the whole show rolling with the contempt hearing, and it was Arpaio’s side are the ones that outed Montgomery for the fraud he is. I think frivolous is the very least that Montgomery/KKKlayman’s suit is.
That seems to be the likely one, since that fellow is an expert on terrorism and his current work focuses on intelligence oversight and reform.
https://www.brennancenter.org/expert/mike-german
Wouldn’t this text on Michael German’s bio suggest he was an attorney?
“Mr. German served as the policy counsel for national security and privacy for the American Civil Liberties Union Washington Legislative Office.”
An ACLU lawyer representing the Arizona plaintiffs specifically referenced Montgomery in a NYT article. That is a basis for the defamation claims.
Montgomery is also mentioned in various pleadings filed in Arizona by the ACLU (on behalf of its clients). Specifically, the pleadings about Montgomery’s proposed intervention, and Moseley’s PHV application.
So, yes, the ACLU has mentioned Montgomery several times — in perfectly legal ways, making Montgomery’s suit frivolous. I would not be surprised if the ACLU eventually files an anti-SLAPP motion.
The ACLU represents the plaintiffs, who are participating in the contempt proceedings (that have presently been suspended pending the court’s action on the recusal motion).
If criminal contempt proceedings are held, then the plaintiffs (and the ACLU) likely will not be participating in those.
It suggests it, but it isn’t definitive, as “counselor” has many meanings.
What is more clear is that Montgomery alleged (“on information and belief”) that German is licensed by New York or DC, and that’s not true. German may be licensed somewhere, however, so it is possible that he is an attorney.
Here’s a 2010 Wired article that refers to German as an ACLU attorney.
I see no evidence that German is actually licensed; I think Wired made a mistake. I’ve read various bios and statements; German has never said that he’s an attorney or lawyer.
The ACLU was involved in the Melendres case. That case has been decided. It is finished.
The current case is the Contempt of Court case as a result of Arpaio ignoring the judges orders in relation to the Melendres case.
I can be corrected of course – IANAL – but I don’t see how the ACLU has anything to do with the Contempt of Court proceedings.
Ooooh, I do so love anti-SLAPP motions!
I would much rather see a motion to slap Klayman upside the head, repeatedly.
Michael German is a real whistleblower:
http://www.judiciary.senate.gov/imo/media/doc/03-04-15%20German%20Testimony.pdf
Oh my, here goes that diversity jurisdiction thingy. Florida (according to my reading) has really limited anti-SLAPP laws that wouldn’t apply to this case.
http://www.dmlp.org/legal-guide/anti-slapp-law-florida
It looks like the Arizona law is pretty useless, too:
http://www.dmlp.org/legal-guide/anti-slapp-law-arizona
The ACLU Foundation is located in New York, and that one also appears to be a dud:
http://www.dmlp.org/legal-guide/anti-slapp-law-new-york
The merits of the Melendres case have been decided, and are over.
What is going now in front of Judge Snow is deciding whether Arpaio has complied with the judge’s injunction in Melendres (Arpaio admits that he hasn’t complied), and what measures need to be taken as a result of that noncompliance.
And in the current proceedings, the ACLU is very much involved. It (as the plaintiffs’ attorneys) are filing motions, taking depositions, attending hearings, cross-examining witnesses. Look at any pleading filed recently by the Melendres plaintiffs, and the ACLU is all over them.
Klayman is attempting to muddy the waters by introducing conversations Montgomery may have had with German (in a different ACLU organization) a few years ago. That is something unrelated to Melendres (although Klayman says otherwise).
My quick-and-dirty preliminary analysis: I see a problem with personal jurisdiction. From the face of the Complaint, none of the defendants live in Florida or practice law there. It appears Montgomery reached out to the ACLU in New York. Generally, the unilateral actions of a resident of State A cannot subject an out-of-state resident to State A’s jurisdiction. The out-out-of-state person must “avail himself of the privileges” of the forum state. Not clear how Klayman hails any of these defendants into a Florida court.
An important question (to which I do not now know the answer) is: whether for conflict of interest analysis, ACLU is treated as one big national law firm or if state/local chapters are independent. If ACLU/NY and ACLU/AZ are separate, former client of one is not former client of the other and Klayman’s house of cards falls.
Generally, any statements made in court or in court pleadings are privileged, and are not actionable as defamation. There are exceptions, but that would be for Klayman & Montgomery to prove.
I haven’t researched Florida law, but in the state where I practice, calling someone a “con man” is not “defamation per se;” it is the harder to prove “defamation per quod.” If per se is proven, at least nominal damages are presumed; per quod requires actual damages, e.g., lost business as a result of the smear. And, of course, if the “gist” of the statement is true, it isn’t defamatory at all.
As an aside: I’ve long felt that, despite their cries of “If we could only get discovery,” the next-to-the-last-thing-on-Earth any birther wants is discovery. Why? It’s a two-way street, both sides get to take discovery. Here, any defendant who doesn’t get out on an early dismissal gets to ask Montgomery the who/what/where/when about his whistle blowing, about his contacts with Arpaio, et al, about the veracity of his revelations. I suspect that the idea of Montgomery being deposed under oath or required to produce documents may be concerning to Arpaio, Zullo, et al.
What is THE-last-thing-on-Earth a birther wants? A trial. If they can lose to an empty chair, imagine the scene with a defense attorney raising objections, cross-examining witnesses, etc.
I suspect I have more thoughts after re-reading the Complaint and sleeping on it.
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This is from Florida’s false claims act, and the attorney’s fees that a state department can get from a false claims plaintiff who sued a state department.
This is a common tactic for Klayman. Klayman represents Montgomery in another suit (also filed in Florida), and those not-in-Florida defendants are making that exact argument.
Exactly. Klayman would like to believe they are one big firm, but there’s no evidence to support that idea.
Klayman knows this because it is one of his favorite tactics — Klayman files lawsuits full of all sort of defamatory material that gets protected by the litigation privilege. It is just him using the legal system for other means.
I wasn’t aware of the ACLU angle, I didn’t think Montgomery came in to it until the contempt hearings.
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Looks like he cut and pasted his venue statement from another complaint in which he sued the government–it sure doesn’t apply to this case.
And he may be overplaying his hand–suing the lawyers waives attorney-client privilege to the extent the attorneys need to defend themselves against his allegations.
I don’t buy the idea that Montgomery ever consulted Michael German in an attorney-client context. German worked as “policy counsel” in the ACLU’s legislative office. That sure doesn’t sound like someone who provides legal advice to individuals.
https://www.aclu.org/news/intelligence-expert-and-former-fbi-agent-joins-aclu-national-security-counsel
As a RW loon *and* legal beagle, KKKlayman loves himself some RICO fantasies, just like Orly did.
And “whistleblower” seems to be another magic word for the RW circle. In some cases it’s a fancy name for “anonymous source I made up myself”, in others it’s to grant legitimacy to con men – as in “I’m not a criminal, I was defamed as such because I uncovered the government’s evil deeds”.
Isn’t Klansman raising the argument even a true statement can be defamatory?
Like in cases where somebody harrasses someone who was once found guilty of a crime by telling that person’s every new acquaintance/boss/partner about the conviction? (At least that’s what I remember from cursory reading; our German law has a similar concept in §192 of our Criminal Code.)
Not that any of that applies here, but I think he’s raising that argument.
Oh I’d love to see that. Especially after 2016 when birthers will know very well the only ones this will end up badly for are themselves. 🙂
It’s an obvious attempt to bully the plaintiffs in the Arpaio case. Make the case as difficult and time-consuming as possible in the hope of getting them to drop charges.
I think the logic goes like this: When lawyer A represents B, B pays him a certain amount of money. If you sue A in relation to the case, A has to spend his *own* money to defend himself and might therefore be bullied into backing out from, or settling, the case where he represents B.
Not sure this works with a large organization such as the ACLU, though. I think KKKlayman bit off more than he can chew. I also don’t think they will take kindly to this kind of tactics and will press intensely for sanctions and vexlit status.
I suspect they are laughing so hard that they can’t decide which junior clerk to assign to the “case”.
WorldNetDaily has picked up the story:
http://www.wnd.com/2015/07/now-the-aclu-gets-sued-for-a-change/
It’s heavy with quotes from Klayman’s press release. There is no indication that they tried to get a response from the ACLU.
Maybe somebody who can still post at WND will ask the question of whether German is an attorney.
Klayman filed a “Related case statement and notice of pendency of other actions” yesterday. He is telling the court about the Montgomery v. Risen lawsuit, No. 15-cv-20782.
This new case has been assigned to Chief Judge K. Michael Moore.
Also:
“Clerks Notice pursuant to 28 USC 636(c). Parties are hereby notified that the U.S. Magistrate Judge Chris M. McAliley is available to handle any or all proceedings in this case. If agreed, parties should complete and file the attached form.”
A bit of irony from BR: their story on the suit is headed by a graphic of a dictionary entry: “Whistleblower (noun) a person who makes public disclosure of corruption or wrongdoing”.
Doc asked “exactly what whistle he blew and when”, but left out the answer: none.
But the real zinger is, not only has he not “ma[de] a public disclosure” so far, Leisure Suit Larry has petitioned the court in his NSA case to preclude his doing so at all (at least for now), by allowing him to testify in secret.
Meanwhile, Klayman is touting the not-yet-a-fact of this Super Sekrit Testifyin’ to the entire planet. So I guess you could say, since the general public won’t hear it, that what’s being blown is a “dog whistle”…
Klayman will be eaten alive by the ACLU’s legal team.
This will be the equivalent of a guy who got in a lucky shot once in his entire life, going up against a professional pistoleer in a shooting competition.
I knew this whole thing rang a familiar bell–Montgomery’s former attorney, Michael Flynn, also called him a “con man”. Here is an article I remembered reading in an attorney practice blog, about the ethical issues re the Montgomery/Flynn “con man” statement. http://www.fromthesidebar.com/2011/03/14/con-man-client-2/
Of course the Montgomery/Flynn issue was very different from the Montgomery/ACLU issue–Flynn actually had been Montgomery’s attorney.
I sit here shaking my head. Attorney German was “policy counsel” in the “legislative offices”, not an attorney likely to form an attorney-client relationship with an individual. I think it’s more likely that Montgomery knew him when German was an FBI agent, and then perhaps contacted him in 2013 for any possible reason. (who knows, maybe Montgomery was trying to run a scam on the ACLU legislative office, and that’s why he shared his documents with German). Anyhow, it’s a stupid suit–we know how the ACLU got the documents in the Melendres suit and it wasn’t from German.
But the funny part to me is, with this suit against German, Montgomery has just waived any attorney-client relationship he may have had with German. And from what I can tell, German is not one to mess with.
So, for the moment, I am truly hoping that this case goes to trial, if only to hear German testify against Montgomery. All thanks to Larry Klayman.
Can’t wait to hear Klayman’s argument that the privilege can’t be waived by this suit. Seems to me there is no suit without delving into the relationship.
But that’s just me. 😉
I’m not a fan of that definition, and specifically the word “public.” In government, the typical whistleblower reports malfeasance to a superior. The way the Montgomery lawsuit plays it, Montgomery wanted to be a whistleblower and consulted the ACLU about how to do it legally.
Objection, your honor. Assumes facts not in evidence.
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Ah, I see that now–funny.
Dang, “German” is always a signal word for me. 😉
I’m not even sure he filed this suit for its own sake. I fully expect him (or even the Arpaio lawyers?) to file a motion in Snow’s court to stay the proceedings while his ACLU case is pending.
They’re dumping so many impropriety allegations on the Snow case that it’s obvious Arpaio expects to lose and base his next election campaign on that old “smoke-fire” fallacy (“they tried to shut me down illegally, that means I’m right so you have to vote for me” – would totally work with his usual base).
I could be wrong but …
The ACLU is the lobbying arm, not the litigation arm —
Michael German works for the ACLU Legislative Office. He is a lobbyist, I believe
https://aclu-wa.org/library_files/MikeGermanbio.pdf
One need not be attorney to be lobbyist. So fact that he works as policy counsel for ACLU does not at all, imho, suggest that he is a practicing attorney.
The ACLU is NOT involved in Melendres – check the pleadings: it is the ACLU Foundation – and the ACLU Foundation of Arizona.
This is from his bio:
It doesn’t say whether he is a currently practicing attorney or not.
This is an interview with Mike German on Democracy Now. He is an interesting guy.
https://www.youtube.com/watch?v=_jdK13154wQ
I love the FOAD letter that Cecilia Wang sent to Klayman. It is included as Exhibit E in the complaint. To paraphrase: ” We received your letter. It is a load of horse hockey. We intend to ignore it. Have a nice day.”
How about somebody who is a comedian letting us know when WND or Leisure Suit Larry ceases to be a joke.
Parallel to this case, Dennis Montgomery is suing the author of a book that calls him a con man. This case is Montgomery v. Risen. It has reached the stage of the Plaintiff’s Reply to the motion to dismiss. There is a delicious bit of irony in that document in a citation in support of the motion to dismiss. It goes:
Larry Klayman was the attorney for Farrah in the very case being cited against him.
https://www.scribd.com/doc/268422728/Montgomery-v-Risen-77-Reply-re-MTD-S-D-Fla-1-15-cv-20782-77
Oh I don’t think that is irony at all: That’s the defendants signaling they know exactly who Klayman is.