Rudy finally reaches the "find out" part
Speech is free. Defamation is not.
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Next Monday morning, Rudy Giuliani will finally come face to face with Ruby Freeman and Shaye Moss in a federal courtroom in DC. At long last, the former president’s lawyer will be confronted with the real, human cost of the lies he told about election fraud.
Thanks to Rudy’s own gross incompetence, he’s lost the case before it begins, and there’s no issue left but how big a check he’ll have to cut. But this is still a significant milestone for Rudy and the country.
In December 2021, Atlanta poll workers Freeman and Moss filed a defamation suit against Giuliani and One America News’s parent company, Herring Networks.
A year earlier, the Trump campaign published grainy, edited footage of the women counting votes on election night and falsely claimed they were tabulating thousands of fraudulent ballots. The story was immediately debunked by Georgia's secretary of state, but Giuliani was undeterred, making the mother and daughter the centerpiece of his lie about stolen elections, repeatedly identifying them by name and playing the tape over and over.
The women suffered a maelstrom of threats and racist harassment and are still fearful today. Just this week Giuliani’s RICO co-defendant Trevian Kutti, the former (Kan)Ye publicist who tried to intimidate Freeman in 2021, threatened to “f— her whole life up” in a social media broadcast.
In a very real sense, this will never be over for these plaintiffs.
OAN settled with Freeman and Moss in 2022 and exited the case, leaving Rudy alone to flounder. And with the spotlight to himself, he proceeded to flounder like he was flopping around a landscaper’s parking lot in suburban Philly across from a porno shop. If the former US Attorney for the Southern District of New York retained any credibility as a lawyer after his unhinged antics in the lead up to January 6, 2021, he demolished it with his wildly self-destructive behavior in this litigation.
First, Rudy spent a year flouting basic discovery obligations, ignoring ominous rumblings from US District Judge Beryl Howell that something very bad would happen if he didn’t get it together and comply with her orders.
Giuliani offered various explanations for his failure to disclose his communications: He whined that the FBI had seized his devices, making his communications irretrievable. He claimed that he couldn’t afford to pay a discovery vendor to sort through his texts and emails to find the relevant material. He said that he just plum forgot to turn off auto-delete on his various accounts.
This last excuse is the most egregious, particularly coming from someone who huffily informed the court in May that of course he understood his discovery obligations, as he’s an experienced practitioner who’s “been doing this for 50 years.”
To be clear: at the beginning of all civil litigation, the plaintiffs will send out a preservation letter informing the defendant that he’s obliged not to destroy any evidence. Indeed, if you suspect that you will be involved in litigation, you have an affirmative obligation to preserve evidence — something Giuliani has admitted he knows perfectly well.
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In July, after getting his first sanctions order from Judge Howell and with another one pending, Giuliani attempted a Triple Xanatos Gambit by filing what’s called a “Nolo Contendre Stipulation [sic].” In general, a plea of nolo contendere in a criminal case allows the defendant to accept liability without admitting guilt. It’s not clear what Rudy thought he was doing here, and it’s perhaps telling that he — and not his lawyer — is the only one who signed this document. He seems to have believed that he could simply stipulate that he’d said all those horrible things about the plaintiffs, and even agree that the statements were defamatory, but then later contest those exact same issues on appeal.
“This stipulation does not affect Giuliani’s ability to seek setoff, offset or settlement credit, or his argument that his statements are constitutionally protected statements or opinions,” Rudy’s lawyer blathered in a filing.
If this was a ploy to save himself from having to comply with discovery and to wriggle out from under the court’s sanctions, it backfired spectacularly. And filing substantially the same document as a “Superseding Nolo Contendre” [sic] after Judge Howell asked him to clarify what the hell he was talking about didn’t help matters.
In a blistering order in August, Judge Howell issued a default judgment against Giuliani, finding him liable for defamation, intentional infliction of emotional distress, and conspiracy.
She derisively dismissed Giuliani’s bizarre “Nolo Contendre” gambit as an attempt to “bypass the discovery process and a merits trial — at which his defenses may be fully scrutinized and tested in our judicial system’s time-honored adversarial process — and to delay such a fair reckoning by taking his chances on appeal, based on the abbreviated record he forced on plaintiffs.”
“Just as taking shortcuts to win an election carries risks — even potential criminal liability — bypassing the discovery process carries serious sanctions, no matter what reservations a noncompliant party may try artificially to preserve for appeal,” she added, in a nod to the actual stakes at issue here.
The court described Giuliani’s document production as mere “blobs of indecipherable data,” and rubbished his preservation efforts as amounting to no more than “turning off auto-delete at some time ‘in late 2020 or early 2021’ on his unenumerated and unspecified ‘email, messaging, communication, or other document storage platforms’ and refraining from manually deleting ‘any electronic documents or dispos[ing] of any paper files.’”
A default judgment is often referred to as “death penalty sanctions.” The defendant is deemed to have done what the complaint alleges, without the necessity of the plaintiffs having to prove it in court. The only issue left for the jury is to calculate how much he’ll have to pay in damages. In this case, it means that the only issue for trial is how much Rudy is going to have to fork over to Freeman and Moss after he ruined their lives.
“Given the willful shirking of his discovery obligations in anticipation of and during this litigation, Giuliani leaves little other choice,” Judge Howell wrote.
Outside the courtroom, capital punishment is final. But in court, you can still get punished after getting “the death penalty.” For Giuliani, that punishment comes in the form of additional negative instructions to the jury.
In her August default order, Judge Howell decreed that “the jury will be instructed that they must, when determining an appropriate sum of punitive damages, infer that Giuliani is intentionally trying to hide relevant discovery about his financial assets for the purpose of artificially deflating his net worth.” And she threatened to impose additional “adverse instructions and exclusion of evidence at trial” if he didn’t comply with an order to disclose audience metrics for his show — an issue relevant to damages in that it demonstrates how widely the defamatory statements were disseminated.
Unsurprisingly Giuliani did not comply, further infuriating a judge who had it up to here with his nonsense a year ago and netting himself yet more negative jury instruction. And still the old goat had some tomfoolery left in him!
On November 20, just three weeks before the scheduled start of jury selection, Giuliani decided that he’d rather not face a jury after all. Even as the parties were duking it out over jury instructions, Giuliani “discovered” case law which deprived plaintiffs of the right to a jury trial in cases of default judgment.
Putting his fate in the hands of Judge Howell is a weird move for someone who described her as “an over-the-top Biden acolyte who has put people in jail for ridiculously terrible periods of time for merely committing trespass” during an August 30 appearance with Newsmax’s Greg Kelly.
Indeed, just this week his political advisor Ted Goodman told me that "the judge’s biases and prejudices are well known and have been demonstrated throughout this case and many others — where the process is the punishment.” And yet Rudy believes that a jury of his peers is actually more terrifying than throwing himself on the mercy of a judge who despises him.
Giuliani’s newly discovered case involved Osama bin Laden, who unsurprisingly failed to appear and defend himself in a civil action filed in DC in 2006. In her denial of Guiliani’s request, Judge Howell refrained from noticing that the defendant had likened himself to a notorious terrorist, simply noting that the issue was well within the court’s discretion, and she did not intend to allow Giuliani to use his own bad behavior as an excuse to yank the rug out from under the plaintiffs on the eve of trial.
And so next week, Giuliani will finally, finally face a reckoning for the damage he caused these women with his lies.
According to a joint pretrial submission filed by the parties on November 14, Freeman and Moss will testify about the fallout from Giuliani’s defamatory statements, and two expert witnesses will attempt to assign a dollar figure to the damages. They may play videotaped deposition testimony from multiple Giuliani allies, including Jenna Ellis, Christina Bobb, and Bernie Kerik.
But by far the oddest witness on this list is Giuliani himself, who says that he may take the stand in his own defense next week. At this point, the trial is solely about damages suffered by the plaintiffs, so it’s hard to see how Rudy could possibly shed any light on that. And having defaulted, he won’t be able to argue against his own culpability. But he could do some serious damage to himself, particularly with respect to the criminal RICO indictment pending against him in Georgia for the exact same conduct at issue here.
Indeed Judge Howell seemed astonished at the former mayor’s plan to put himself in jeopardy by testifying, questioning his counsel Joseph Sibley IV at a hearing on Tuesday about whether Giuliani intends to assert his Fifth Amendment right against self-incrimination. Sibley was non-committal, according to CNN, but appeared to confirm that his client intends to take the stand. His client was not available for comment — he was apparently taping his show in New York instead of attending the hearing. He’s under orders to appear next week, but when it comes to Rudy Giuliani, who even knows.
That’s it for this week
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Have a great weekend!