Does the ACLU Stand for Civil and Due Process Rights, or Not?

ARE CONSTITUTIONAL RIGHTS ONLY FOR “IMMIGRANTS?”

by Sharon Rondeau

(Nov. 2, 2015) — On Thursday, The Post & Email reported that on Wednesday, Maricopa County, AZ Cold Case Posse lead investigator Mike Zullo filed a motion pro se in the case of Melendres, et al v. Arpaio, et al requesting a 30-day extension past the previously-set October 30 deadline for him to request a protective order as stated by the presiding judge, G. Murray Snow.

In his motion, Zullo requested more time to retain counsel for which he believes Maricopa County is responsible to pay.

Zullo’s production of documents and testimony has been sought by plaintiffs’ attorneys from the American Civil Liberties Union (ACLU) and the firm Covington & Burling after he helped to oversee a project conducted by a confidential informant to the Maricopa County Sheriff’s Office (MCSO), Dennis Montgomery.

On Friday, U.S. District Court Judge G. Murray Snow denied Zullo’s motion but stated that the court would consider it a “Motion for Protective Order.”

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Many former Department of Justice employees have worked at Covington, with some returning to the firm following their public service, as in the case of former U.S. Attorney General Eric Holder, Jr.  Former Arizona U.S. Senator John Kyl is now employed at Covington, as is Assistant U.S. Attorney under Holder, Lanny Breuer.

Like Holder, Breuer had worked at Covington prior to his employment at the DOJ.

The ACLU states on its website that it seeks to “defend liberty, equality & justice” and has been a plaintiff in a lawsuit challenging the National Security Agency’s (NSA) harvesting of Americans’ phone records.

Melendres arose in December 2007, claiming that MCSO Sheriff Joseph M. Arpaio oversaw patrols conducting immigration sweeps and traffic stops which profiled Latinos suspected of being in the county illegally.  Until 2009, the MCSO was working in partnership with the U.S. Immigration and Customs Enforcement (ICE) in its 287(g) program, which delegated federal apprehension authority of illegal aliens to county sheriffs by formal agreement.

In his motion filed on Wednesday, Zullo asserted that his Fourth, Fifth and Sixth Amendment rights were violated by attorneys representing Arpaio who he claimed had led him to believe also represented him as a result of his having been commissioned by Arpaio to oversee some of the work performed by the confidential informant over an approximate 18-month period.

The first ten amendments to the U.S. Constitution comprise the Bill of Rights, which anti-Federalists favored over the ratification of the Constitution and the formation of a national government during the Constitutional Convention of 1787.

Historically, the ACLU has appeared to be a defender of Fourth Amendment rights against illegal searches and seizures. In 2007, the organization wrote that “The First and Fifth Amendments are not optional.”

Less than one week ago, the ACLU of Utah applauded the Sixth Amendment Center‘s recent report which stated that “in Utah’s misdemeanor courts, defendants are often actually denied counsel when they are entitled to it, and in Utah’s felony courts, systemic deficiencies often lead to constructive denial of counsel.”

However, attorneys from the ACLU and Covington & Burling filed a motion on Friday opposing Zullo’s request for the extension to seek counsel to protect those same rights, attaching ten documents to support their argument and claiming that “Mr. Zullo actually has no constitutional right to counsel at all in this civil case.”

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Of the three ACLU attorneys’ names appearing under the signature line on page 5, two represent the “Immigrants’ Rights Project.”  The ACLU maintains that “The fundamental constitutional protections of due process and equal protection embodied in our Constitution and Bill of Rights apply to every person, regardless of immigration status.”

Zullo is not an “immigrant.”

The plaintiffs’ attorneys claimed that “Mr. Zullo’s requested extension would create obstruction and delay in the contempt proceeding” against Arpaio, some of his deputies, and Maricopa County for having defied Snow’s order in late 2013 to cease immigration patrols.

During contempt hearings in April, Snow, referring to a June 4, 2014 article in the Phoenix New Times titled “Joe Arpaio’s investigating Federal Judge G. Murray Snow, DOJ, Sources Say, and using a Seattle Scammer to Do It,” asked Arpaio and his chief deputy, Gerard Sheridan, if Montgomery had been investigating him or members of his family.  Both lawmen denied any investigation of Snow or anyone related to him, instead stating that they were concerned after Montgomery had suggested that their phone lines were being tapped by a government entity.

Another line of questioning by Snow led to the revelation that his wife had commented to another patron in a restaurant that Snow disliked Arpaio and wished to see him lose the next election, at that time to take place in November 2012.  Arpaio won re-election to a sixth term as Maricopa County Sheriff.

In early May, Arpaio’s attorneys asked Snow to recuse himself from what they claimed was a conflict of interest concerning his wife’s alleged comments, which neither Snow nor his wife denied that she made.  Snow has refused to remove himself from the case.

Zullo has turned over thousands of pages of documents to Arpaio’s counsel in response to a subpoena from the plaintiffs but has withheld some materials, invoking the right of “due process.”

Since September 2011, Zullo has served as lead investigator of the Maricopa County Cold Case Posse in a probe of the long-form birth certificate image and purported Selective Service registration form belonging to Barack Hussein Obama.  On March 1, 2012, Zullo and Arpaio gave the first of two press conferences in which they reported that there was probable cause to believe that both “documents” are “computer-generated forgeries.”

During the second press conference on July 17 of that year, Zullo and Arpaio reported that the standard of probable cause had been surpassed in regard to the birth certificate image, calling upon Congress and the media to launch its own investigations.

Neither entity proved willing to discover who created the forgeries or why.

Zullo is not employed by the MCSO.  As a member of one of numerous posses authorized by the MCSO, he has worked as a volunteer.  However, documents turned over to the court indicate that Zullo’s expenses in assisting with Montgomery’s work for the MCSO were approved for payment by Sheridan.

Detective Brian Mackiewicz, who was delegated by Arpaio, along with Zullo, to oversee Montgomery’s work, testified in the ongoing contempt trial that Montgomery was not investigating Snow.

According to Arizona Central on Thursday:

Montgomery has identified himself as former CIA contractor and that he could prove the federal government had hacked into tens of thousands of residents’ bank accounts.

Montgomery’s work soon veered from its mission. He produced documents that indicated collusion among Snow, the Department of Justice and federal officials.

Another Montgomery-produced document alleged that Arpaio and Chief Deputy Jerry Sheridan’s phones had been tapped.

And at least one document suggested that Snow had ordered a wiretap on the Sheriff’s Office.

The Post & Email has not independently confirmed that report as of press time.  However, on the same day, The Phoenix New Times asserted that “Some of the fictitious wiretap numbers cited in Montgomery’s timelines and flowcharts alleged that Snow had issued orders for at least some of the wiretaps.”

Also contained in that report, as stated by Sheridan in testimony on April 24, the wiretap codes provided to U.S. District Court Royce C. Lamberth several months ago were confirmed by Lamberth as accurate.

While Snow at first appeared dubious about Zullo’s Fifth Amendment invocation, stating that it pertained only to “testimony” and not material items, he wrote that Zullo’s claim may be valid following Zullo’s quoting from the case United States v. Hubbell in his motion.