by Sharon Rondeau
(Dec. 8, 2022) — On Monday, the U.S. Justice Department’s Civil Division, Federal Programs Branch, filed its response to a request from former government subcontractor Dennis Montgomery for a 15-year-old government-initiated protective order to be lifted as a result of a subpoena Montgomery received in a defamation case filed against MyPillow CEO Mike Lindell by Dominion Voting Systems, Inc.
The protective order was granted in 2007 over information the government claimed constituted “national security” interests concerning two 2006 civil cases, Montgomery v. eTreppid Technologies, LLC and eTreppid Technologies, LLC v. Montgomery, in which Montgomery and his former business partner, Warren Trepp, claimed ownership of certain source code and software produced during eTreppid’s contractual work with the Department of Defense (DOD) in the early 2000s.
On November 14, Montgomery’s attorneys wrote that, “Montgomery has moved for an order restricting the Government’s ability to invoke the various means he has asserted in the past to block his disclosure of information that would embarrass or incriminate the Government officials or agents, allow him to defend against claims asserted by the Internal Revenue Service, and permit him to use his intellectual property.”
Montgomery additionally claimed as justification for his request “outrageous government conduct” and “governmental abuse of power.”
Montgomery filed his motion, his attorneys wrote, so as to be able to respond to the Lindell subpoena without concern for violating the 15-year-old protective order and State Secrets Privilege which then-Director of National Intelligence John Negroponte claimed over certain information to which the parties were privy.
For his part, Lindell wishes to make public “data” he claims Montgomery sold him allegedly gleaned from the 2020 election demonstrating the presidential contest was commandeered in favor of Democrat challenger Joe Biden.
Nowhere in Montgomery’s November 14 brief appear the subjects of “elections,” “voting” or “2020.” Rather, the focus is Montgomery’s years-long grievances with the U.S. government and the claim that, “Montgomery demonstrates in his declaration (Exhibit A) that the information that Lindell seeks to introduce in his defense against the defamation claim in US Dominion, Inc. v. My Pillow, Inc., No. 1:21-cv-00445 (D.D.C.) is material to the issues in that litigation.”
“Montgomery must choose between complying with the Subpoena,” his attorneys contended, “which would, in the view of the Department, constitute a violation of the state secrets privilege, the protective order, and the classified information nondisclosure agreement or defy the Subpoena and suffer the consequences of doing so. Ex. B attached ¶ 18. He contends that, in the circumstances of this case, the Government should be prohibited from invoking the state secrets privilege, the protective order, or his classified information nondisclosure agreement under the equitable doctrine of outrageous government conduct.”
An 11-page attachment to the filing consists of “Exhibits A and B,” the subpoena and the circumstances surrounding Montgomery’s receipt of it, and Montgomery’s contention that “the Department has asserted the state secrets privilege to protect from disclosure and which would reveal misconduct by agencies of the United States involving surveillance of citizens of the United States and other actions that violate U.S.C. § 1809.”
Since at least 2013, Montgomery has claimed to possess evidence of illegal government surveillance of U.S. citizens, long before he began to say he invented software or other technology used in U.S. “elections.”
Both claims have been expounded upon by Mary Fanning and Alan Jones of The American Report, including Montgomery’s October 31, 2020 claim that hardware and software he allegedly assembled while a government subcontractor, commandeered away from their original purpose by bad government actors, were in the process of altering presidential votes in eight states from Donald Trump to Biden.
Those claims have never been corroborated but are often revived while interwoven with current news events.
For more than a year, Lindell has been promising to release the “PCAPS” data allegedly collected by Montgomery as the election unfolded, first at his “Cyber Symposium” in August 2021 and again when announcing his Motion to Intervene in the closed Nevada case at his “The Moment of Truth Summit” in August 2022.
In late October, Lindell claimed that “judges” would have to see the data prior to any release to the general public.
In their response filed Monday, DOJ attorneys Brian M. Boynton, Anthony J. Coppolino and James R. Powers urged U.S. District Judge for the District of Nevada Miranda Mai Du to maintain the protective order, proffering several reasons as to why they believe Montgomery lacks “standing” to make his request and the court lacks jurisdiction.
Previously, the DOJ wrote that from its standpoint, Lindell is at liberty to release any information he received from Montgomery because Lindell is not a party to the 2006 litigation over which the protective order was granted by then-U.S. District Judge Philip M. Pro.
In its latest filing, the DOJ contended, “…the Protective Order entered in this case has nothing to do with the defamation litigation against Lindell: the Protective Order does not apply to any litigation but the above-captioned cases in which it was entered; no party or prior party to this litigation is a party to the defamation lawsuit; and neither this litigation nor the United States’ motion for protective order have anything at all to do with voting, elections administration, or Dominion.”
On page 7, the DOJ claimed the Nevada District court does not have jurisdiction “over this subpoena-related dispute because the Federal Rules of Civil Procedure prescribe the sole venues for such disputes, none of which is this Court. Montgomery’s motion fundamentally seeks protection in relation to his response to a third-party subpoena issued under Federal Rule of Civil Procedure 45.”
“But Rule 45 provides that disputes regarding third-party subpoenas are to be resolved in the “court for the district where compliance is required,” the DOJ continued. Therefore, they claimed, Montgomery’s “first resort” for relief should be the Middle District of Florida, where the subpoena was served.
Moreover, the DOJ said, Montgomery “lacks standing to pursue” the matter since “injury” is neither “impending” nor “imminent.” “Montgomery’s injury appears premised on his contention that the Government may take adverse actions against him if he reveals certain information in response to the Lindell subpoena in the Dominion litigation,” the attorneys wrote. “It is not enough that such future injury could be ‘possible’ or even that there is an ‘objectively reasonable likelihood’ that it would occur.”
On page 10, the DOJ claimed that, “…insofar as Montgomery instead contends that his injury arises from the subpoena itself, such as the burdens of responding to the subpoena, that injury is not traceable to the United States…The Government did not serve the subpoena and
has nothing to do with it. Montgomery’s dispute would be with Lindell, if anyone. Accordingly, even that asserted injury cannot support a claim against the United States.”
“Montgomery contests the United States’ reliance interests primarily on the ground that the
protective order conceals violations of law. Pl.’s Mot. at 8–10 . This allegation is baseless,” the DOJ further wrote. “The unrebutted evidence before the Court is that the Protective Order was sought (and granted) to protect “intelligence sources and methods,” the disclosure of which could cause harm to national security. Negroponte Decl. ¶ 12. Montgomery’s speculations and allegations to the contrary are inadequate to support his claim for relief.8“
The judge has not yet responded to the most recent filings.