Rudy Giuliani has been a lawyer for a long time, 55 years to be exact. That’s longer than many readers of this column live. And he took pains to highlight his long career before Judge Beryl Howell. Howell investigated whether the former New York mayor defamed Georgia poll workers Ruby Freeman and Shaye Moss by falsely claiming after the 2020 election that they committed voter fraud. After Giuliani failed to comply with the lawsuit’s subpoenas, Howell decided his wild claims were simply false. “Giuliani has issued statements containing concessions that have faltered under scrutiny and excuses intended to mask the inadequacy of its disclosure requirements,” Howell wrote in a 57-page statement Wednesday.
Now Giuliani has been defaulted, meaning his liability for defaming Georgia poll workers has been cleared. His fate is sealed.
Now Giuliani is in default, which means his liability for defaming Georgia poll workers is cleared. His fate is sealed. The only question now is how much he has to pay. A jury will decide how badly Freeman and Moss were harmed and what damages are appropriate.
But that was Giuliani’s case to lose. It is well known that it is difficult for plaintiffs to win defamation cases, and they do it on purpose. Since the New York Times v. Sullivan case in 1964, the Supreme Court has raised the bar for plaintiffs in libel suits because the First Amendment allows citizens and the press “breathing space.” False statements are not always defamatory. False statements about famous and powerful people must be made with “actual malice,” meaning the speaker knows they are false, or makes them in “reckless disregard” of the truth. Freeman and Moss are not powerful people, and for them the legal route is easier.
As we all know, the Freeman and Moss vote count became grist for a mill of lies and a mob that ensued. They were accused of electoral fraud, wrongly so, as Giuliani himself now admits. There were racist slurs and threats of lynching and executions. Strangers appeared in their homes and they were forced into hiding. Moss’ teenage son was also the victim of threats and racist messages and began failing at school. Trevian Kutti, a publicist for hip-hop artist and Trump supporter Kanye West, claimed Freeman was being arrested and tried to pressure her into confessing to the voter fraud. Of course, Freeman had nothing to confess.
Giuliani’s lies helped sow chaos and fear, which brings us back to slander. Every state has laws protecting citizens from lying, but the burden of proof for libel plaintiffs is so heavy that only a small percentage of libel cases are successful. This case differs for two important reasons. First, according to court filings filed in July, Giuliani has not denied that his statements about Freeman and Moss were false. However, he argued that Freeman and Moss were not harmed by these statements. (Ted Goodman, a Giuliani spokesman, claimed in a statement that Giuliani “did not contest the matter to proceed to the part of the case permitting a motion to dismiss.” Apparently, that motion to dismiss did not succeed.)
Second, the judge said that despite having practiced law for more than 50 years, Giuliani destroyed evidence in the defamation lawsuit, despite repeated warnings of the consequences.
Destroying evidence risks the consequences of an atomic bomb in any litigation, namely a default judgment. A default judgment means that the defendant’s liability is sealed and his fault is established. Crucial to the most severe sanctions being imposed is whether the party that destroyed evidence did so in bad faith. But according to the judge’s order, Giuliani hid, misled, and even destroyed evidence over a period of months, repeated hearings, and repeated warnings after Giuliani admitted to being notified of the obligation to preserve evidence “in early 2021.”
Crucial to the most severe sanctions being imposed is whether the party that destroyed evidence did so in bad faith.
This is despite Giuliani’s famous and often cited career as a lawyer. Sometimes failure to preserve evidence results in lighter sanctions, especially when the destroyer doesn’t know any better. Giuliani knows better. As Howell noted Wednesday, “The fact that Giuliani is a seasoned trial attorney with what he says is 50 years of litigating experience… only underscores his lackluster conservation efforts.” In other words, Howell said Giuliani “clearly should have known better.” The destroyed evidence was “irretrievable” and vital to the case. Standard was really the only option.
And so, once again, Giuliani has only himself to blame. He’s not a victim here. But there are sacrifices beyond the horror that befell Ruby Freeman and Shaye Moss. There are also the other thousands of Americans who volunteer to make our election process work, who get up early to man the polling stations, and who are now being attacked. Nobody wants to be the next target of an election-denying pack. And the legal system itself has been besmirched by a man who was once a hero to people of all political persuasions but is now a self-confessed fabulist who helped start a mob. Libel cases are hard to win. But not when a seasoned and once respected attorney destroys evidence and hides the truth.
